Travelers Indem. Co. v. Chumbley

Citation19 A.L.R.3d 1043,394 S.W.2d 418
Decision Date21 July 1965
Docket NumberNo. 8416,8416
PartiesThe TRAVELERS INDEMNITY COMPANY, a corporation, Plaintiff-Appellant, v. Forest Oakley CHUMBLEY and Elizabeth L. Losinsky, Defendants-Respondents.
CourtCourt of Appeal of Missouri (US)

Mann, Walter, Powell, Burkart & Weathers, Robert W. Schroff, Springfield, for plaintiff-appellant.

Meredith B. Turner, Stewart, Reid & Turner, Springfield, for defendant-respondent, Forest Oakley Chumbley.

Allen, Woolsey & Fisher, Stephen L. Hill, Springfield, for defendant-respondent, Elizabeth L. Losinsky.

STONE, Judge.

In this action to recover on a subrogation claim for $500, plaintiff, The Travelers Indemnity Company (hereinafter sometimes referred to as Travelers), appeals from the order of the circuit court sustaining the separate motions of defendants, Forest Oakley Chumbley and Elizabeth L. Losinsky, to dismiss plaintiff's first amended petition for 'failure to state a claim upon which relief can be granted.' Rule 55.33; Sec. 509.300. 1 Since the order did not specify otherwise, the dismissal was with prejudice and operated as an adjudication upon the merits. Rule 67.03; Sec. 510.150; Clark v. City of Humansville, Mo.App., 348 S.W.2d 369, 370(1). Of course, the motions to dismiss admitted, for the purposes of the motions, the truth of all facts well pleaded therein and any inferences fairly deducible therefrom; and, on this appeal, we broadly construe the petition most favorably to plaintiff, giving it the benefit of every reasonable and fair intendment in view of the facts alleged. 2

From plaintiff's first amended petition and the exhibits attached thereto, which are a part thereof for all purposes, 3 the material facts are substantially as hereinafter detailed. Plaintiff Travelers issued to defendant Chumbley of Springfield, Missouri, its policy of insurance No. AP9044307 (hereinafter referred to as the policy) providing, inter alia, coverage for 'medical payments' within the stated limit of $500 for each person, which said policy was in effect on August 20, 1960, when defendant Chumbley was struck and injured by a 1959 Pontiac automobile owned by defendant Losinsky. Left unattended at the curb on College Street, a heavily-traveled thoroughfare in Springfield, the Losinsky automobile was rolling into the pathway of oncoming traffic when Chumbley, while undertaking to stop the rolling automobile, was struck by it and thereby suffered a crushing blow to his right leg which resulted in amputation at the knee. In treatment of his injuries sustained in that accident, Chumbley incurred medical, surgical and hospital expenses in excess of $500; and, pursuant to his claim under the medical payments coverage afforded by the policy, Travelers paid $500 to him. Thereafter, by letter dated November 15, 1960, Travelers advised Losinsky that 'we were called upon to pay under our medical payments coverage' and that 'as we have the right of subrogation under our policy for all amounts which we were called upon to pay up to our policy limits, this letter is merely sent to notify you of that subrogation interest.' Neither the policy limit for medical payments nor the amount paid under that coverage was stated in Travelers' letter. On December 2, 1960, Chumbley (as plaintiff) instituted a suit for damages in the Circuit Court of Greene County, Missouri, against Losinsky (as defendant), which said suit subsequently was removed to the United States District Court and, on a date not disclosed in the transcript, was dismissed with prejudice by Chumbley pursuant to stipulation.

Travelers averred in its first amended petition that defendants Chumbley and Losinsky 'entered into a settlement agreement . . . to settle all claims' that Chumbley 'has or may have' against Losinsky; that, in negotiating and consummating such settlement, the parties thereto did not notify Travelers but 'ignored the [subrogation] rights of plaintiff [Travelers] which rights plaintiff held as the assignee of Forest Oakley Chumbley' and of which 'rights' both Chumbley and Losinsky had prior knowledge; and that such 'subrogation right was given to plaintiff by Forest Oakley Chumbley' by virtue of paragraph 15 of the policy 'conditions' appearing on page 18 of the 20-page policy and reading as follows:

'15. Subrogation. In the event of any payment under this policy, the company shall be subrogated to all the insured's rights of recovery therefor against any person or organization and the insured shall execute and deliver instruments and papers and do whatever else is necessary to secure such rights. The insured shall do nothing after loss to prejudice such rights.'

The Travelers asserted that it was entitled to recover $500 from defendants Chumbley and Losinsky, 'individually or jointly' (in paragraph 12 of the petition) or 'individually and jointly' (in the prayer). (All emphasis herein is ours.)

The sole point in plaintiff's brief is that its first amended petition did state a claim for relief upon which it was entitled to recover, 'in that medical expense is an item of special damage, is readily ascertainable as to nature, extent and amount, is recoverable separate and apart from a bodily claim, is recoverable even though bodily injury was not sustained, and is recoverable by one other than the person for whom medical treatment was provided.' Obviously, the quoted point was framed to anticipate and deal with defendant Losinsky's contention (as stated in her answering brief) that the trial court did not err 'because to allow plaintiff to maintain a cause of action against defendant Losinsky would allow the assignment of an unliquidated claim for personal injury, and would allow the plaintiff to split a cause of action in allowing a separate and distinct claim to be made for medical expenses, and would allow the splitting of the claim for medical expenses into two parts.' Defendant Chumbley's position is that, regardless of all else, the first amended petition stated no cause of action against him because defendant Losinsky had knowledge of plaintiff's alleged 'subrogation right' prior to settlement of Chumbley's claim against Losinsky and, therefore, 'whatever rights plaintiff had against defendant Losinsky prior to the settlement, plaintiff still has.'

The appeal as to defendant Chumbley is 'a short horse soon curried.' Our Missouri courts have held, 4 in accordance with the overwhelming weight of authority in other jurisdictions, 5 that: '. . . if a third party tort-feasor, with knowledge of an insurer's right of action as subrogee, and without the consent of the insurer, settles with the insured, the insurer's right to proceed against such tort-feasor is not affected. In such case, the primary wrongdoer, and not the insured, should repay the insurer. Hamilton Fire Insurance Company v. Greger, 246 N.Y. 162, 158 N.E. 60, 55 A.L.R. 921, 925.' Farm Bureau Mutual Insurance Co. v. Anderson, Mo.App., 360 S.W.2d 314, 320(7). Paragraph 15 of the policy obligated Chumbley to 'do nothing after loss to prejudice such [subrogation] rights' as Travelers had. We agree with Chumbley that he did not violate this obligation when, after notice to tortfeasor Losinsky of Travelers' alleged right of subrogation, Chumbley (in the language of plaintiff Travelers' first amended petition) 'entered into a settlement agreement . . . to settle all claims' that he 'has or may have' against Losinsky. In these circumstances, (as Chumbley's counsel put it) 'whatever rights plaintiff had against defendant Losinsky prior to the settlement, plaintiff still has.' Plaintiff's first amended petition stated no cause of action as to defendant Chumbley and properly was dismissed as to him.

On the appeal as to defendant Losinsky, plaintiff Travelers argues that 'medical expense is a special damage, is separate and apart from a bodily injury claim, and the right to recover such special damage is assignable and subject to the principles of subrogation.' So, plaintiff says that 'medical expense stands on the same footing as property damage' and that, on the authority of General Exchange Insurance Corp. v. Young, 357 Mo. 1099, 212 S.W.2d 396, recovery should be allowed on the subrogation claim under consideration.

It is true that medical and hospital expenses [Heibel v. Robison, Mo.App., 316 S.W.2d 238, 243(5)], as well as loss of earnings and diminished capacity to work [Fleddermann v. St. Louis Transit Co., 134 Mo.App. 199, 206, 113 S.W. 1143, 1145(6)], are regarded as special damages, i. e., damages which are the natural but not the necessary and inevitable result of the wrongful act and injury of which complaint is made [Devine v. Kroger Grocery & Baking Co., 349 Mo. 621, 635, 162 S.W.2d 813, 819; Weller v. Hayes Truck Lines, 355 Mo. 695, 705, 197 S.W.2d 657, 663(12); Boehm v. St. Louis Public Service Co., Mo., 368 S.W.2d 361, 368], as distinguished from general damages, which the law imputes as the natural, necessary and logical consequence of such wrongful act and injury. Johnson v. Flex-O-Lite Manufacturing Corp., Mo., 314 S.W.2d 75, 84(11); Hildreth v. Key, Mo.App., 341 S.W.2d 601, 614. However, as the cited cases demonstrate, this distinction between general and special damages usually is noted and becomes relevant in connection with the determination of issues as to what items of damage must be pleaded and as to what evidence concerning damages is admissible under the pleadings. 6 Damages, both general and special, constitute but a single element, albeit a necessary one, of a tort. 7 And torts are divided into two general classes, namely, 'property torts' which involve injury or damage to property, whether realty or personalty, and 'personal torts' which involve injuries to the person, whether to the body, reputation or feelings. 8

The policy obligation imposed upon Travelers by 'Coverage...

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