Travelers Indem. Co. v. Bohn

• Decision Date: 09 November 1970
• Docket Number: No. 55028,No. 2,55028,2
• Citation: 460 S.W.2d 642
• Parties: The TRAVELERS INDEMNITY COMPANY, a Corporation, Respondent, v. Irvin H. BOHN, Jared Matthews, james Arthur Matthews and Doris Matthews, Appellants
• Court: Missouri Supreme Court

Page 642

460 S.W.2d 642

The TRAVELERS INDEMNITY COMPANY, a Corporation, Respondent, v. Irvin H. BOHN, Jared Matthews, james Arthur Matthews and Doris Matthews, Appellants.

No. 55028.

Supreme Court of Missouri, Division No. 2.

Nov. 9, 1970.

Motion for Rehearing or to Transfer to Court En Banc Denied

Dec. 14, 1970.

Evans & Dixon, Eugene K. Buckley, St. Louis, for respondent.

John A. Walsh, Jr., St. Louis, for appellants Matthews.

Lester W. Spilker, St. Louis, for appellant Bohn.

HENRY I. EAGER, Special Commissioner.

Plaintiff here seeks a declaration of its rights and liabilities under a 'Homeowner's' policy issued by it to defendant Bohn. A trial to the Court resulted in a judgment of nonliability, rendered with findings of fact and conclusions of law. The parties have filed an agreed statement of facts, and there seems to be no controversy on any material fact or facts.

The policy in question provided personal liability coverage to the insured to a maximum of $50,000 against claims for bodily injury, with the obligation to defend suits and pay judgments; it further provided for the payment of medical and surgical expenses, in somewhat expanded terms, to or for any person who sustained bodily injury by accident on the premises, or elsewhere if caused by activities of the insured, and in certain other instances. By a specific exclusion it was provided that the foregoing coverages did not apply 'to the ownership, maintenance, operation, use or unloading of (1) automobiles or midget automobiles while away from the premises or the ways immediately adjoining * * *.' The term 'premises' was defined, in substance, as those where the insured maintained a residence and the private approaches thereto. Bohn's residence was at 407 Clark Street in Webster Groves, Missouri, and it is stipulated that the term 'premises' refers to those at that address. Clark Street was and is a public way and it adjoins Bohn's residence or, as the stipulation states, it has a 'common boundary' with his premises. Clark Street extends from Bohn's residence easterly to a residence designated at 607 Clark Street and beyond, before there is an intersection known as Bompart Street, and passing on through that intersection continues indefinitely, so far as our record shows.

On November 5, 1965, defendant Bohn was driving his car toward his home, westwardly on Clark Street when he struck the defendant Jared Matthews (two years old) in front of 607 Clark Street; sixteen houses and approximately 847 feet of the street intervened between Bohn's residence and the place of the collision. Jared Matthews, by his mother as next friend, filed suit against Bohn and therein he prayed for $27,500 for his injuries due allegedly to Bohn's negligence. It appears vaguely in the record that claim is also made for medical expense but that particular point is immaterial to our present consideration. Bohn had automobile liability insurance to the extent of $5,000 with another insurer and it is agreed that this amount is to be excluded from the coverage of plaintiff under the terms of its policy, if it is held to be liable under these circumstances. The plaintiff has made all the interested parties defendants. The suit by Jared Matthews against plaintiff in the Circuit Court of St. Louis County is still pending, untried; it seems that Bohn is presently being defended therein by his other insurer, Maryland Casualty Company. No suit or suits based on derivative claims have been filed by the parents of the child, but they are defendants here.

Plaintiff alleged the substance of the foregoing facts in its petition, and prayed for a declaration of its rights and liabilities, more specifically to the effect that it was not liable to defend the suit or pay any judgment, because the injury arose out of the use of an automobile 'while away from the premises of Irvin H. Bohn or the ways immediately adjoining.' The defendants admitted the formal matters, but (by denials and affirmative allegations) insisted that the injury did occur on an open and public way which immediately adjoined the insured premises. Defendants also alleged that the exclusion was void as contrary to law, but that point is not briefed here. Defendants, of course, prayed declarations in their favor, specifically that the plaintiff be required to defend and to pay any judgment rendered in the pending suit. The Matthews also sought a declaration of liability on the medical coverage. Plaintiff filed a reply to the allegations of new matter. Mrs. Matthews was appointed guardian ad litem for the child. The sole issue submitted here on the merits is whether the collision and injury occurred on a way immediately adjoining the premises of the insured Bohn.

The trial court found, in addition to the formal matters of the coverage and its terms: the locations of Bohn's residence and the place of the accident; that Bohn had claimed liability coverage and the Matthews had claimed medical coverage; that Clark Street was an open and public street from 407 to 607 and beyond, with no intersections between those numbered houses; that Clark Street in front of 607 Clark Street did not 'immediately adjoin' the insured premises at 407 Clark Street; that the collision did not occur on the premises at 407 Clark Street or on the ways immediately adjoining. In its conclusions of law (which we shall refer to later) the Court held that the collision did not occur on a way immediately adjoining Bohn's premises, that he was not entitled to liability coverage, and that the Matthews were not entitled to medical payments, all by reason of the exclusion in plaintiff's policy. A 'decree' or judgment was entered for plaintiff accordingly. Defendants filed a most extensive motion for new trial and for certain additional or amended findings; the Court adopted three of the suggested findings, namely, (1) the limit of plaintiff's coverage; (2) that in Jared Matthews' suit for damages he is claiming $27,500, and (3) that Bohn has other automobile liability insurance of $5,000. The Court also adopted one further requested finding, as amended by it, namely, 'That Clark Street and the premises share a common boundary line.' Thereupon the Court overruled the motion and defendants appealed.

Plaintiff has filed here a motion to transfer the cause to the St. Louis Court of Appeals for lack of jurisdiction in this Court. The only claim of jurisdiction rests upon the amount in dispute. Plaintiff takes the position that the amount ($27,500) claimed by Jared Matthews in his suit against Bohn, less $5,000, the amount of Bohn's other policy, does not establish the jurisdictional amount because, in fact, nothing may ever be recovered in that suit and, in any event, the amount of any such recovery would be wholly uncertain. Plaintiff cites the rule often stated, that the record must affirmatively show with certainty that the amount in dispute, regardless of all contingencies, exceeds $15,000. See: Republic Insurance Co. v. Hearn, Mo., 414 S.W.2d 549; Cotton v. Iowa Mutual Liability Ins. Co., Mo., 251 S.W.2d 246; M.F.A. Mutual Ins. Co. v. Quinn et al., Mo., 251 S.W.2d 633. Defendants, who took the appeal and resist the motion, rely in large part upon the line of cases holding that where a plaintiff has filed suit making a bona fide claim for more than $15,000 and loses in the trial court, the amount of his claim will be considered here as the jurisdictional amount. (See cases cited in Crouch v. Tourtelot, Mo., 350 S.W.2d 799, 803.) As extending this principle, they rely also upon Crouch, supra, and Woods v. Juvenile Shoe Corp. of America, Mo., 361 S.W.2d 694, where the same test was applied when a defendant was seeking indemnity by way of a cross-claim or a thirdparty petition and the appeal involved only that claim. To illustrate: In Crouch, the defendant in an automobile personal injury action had cross-claimed for indemnity against the plaintiff's husband (her driver) for whatever amount might be recovered of him. The plaintiff had sued for $25,000. The appeal involved only the cross-claim which had been dismissed, but the majority of this Court in Banc held that the amount claimed in good faith in plaintiff's petition fixed the jurisdiction. The Woods case merely followed Crouch, supra. Distinctions in the facts may be noted in Cotton, Republic and Quinn, but space does not permit a discussion of them. The present case is controlled by Crouch, but we feel that the facts here more strongly show our jurisdiction than did the facts there. In Crouch, the defendant was merely seeking indemnity; in our case the plaintiff has, in effect, by its contract placed itself in the shoes of the defendant Bohn and has assumed not only the duty of defending his damage suit, but of paying any judgment rendered therein (assuming that there is policy coverage, which must be determined on the merits). Plaintiff is also asking to be relieved of a liability which is stated of record to be $27,500 (less $5,000). If no suit was pending and no definite value fixed on the original claim, then plaintiff's liability might well be contingent, within the meaning of our cases. We rule that we do have jurisdiction.

So far as the merits are concerned, this case boils down to one issue, namely: did the collision occur on or away from 'the ways immediately adjoining' Bohn's premises? There is no doubt that Clark Street was a 'way'; there is no doubt that it passes Bohn's residence and at that point adjoins it. There is also no doubt that sixteen houses and about 850 feet along the street intervened between Bohn's residence and the place of the injury, and that at the latter point the 'way' certainly did not touch or adjoin Bohn's property. The trial colurt made rather detailed findings and conclusions, including these: that the collision did not occur on Bohn's premises or on the way immediately adjoining; that the term 'ways immediately adjoining the premises' is unequivocal...