Union Automobile Indemnity Ass'n v. Reimann

• Decision Date: 08 June 1943
• Docket Number: No. 26334.,26334.
• Parties: UNION AUTOMOBILE INDEMNITY ASS'N et al. v. REIMANN et al.
• Court: Missouri Court of Appeals

171 S.W.2d 721

UNION AUTOMOBILE INDEMNITY ASS'N et al. v. REIMANN et al.

No. 26334.

St. Louis Court of Appeals. Missouri.

June 8, 1943.

Rehearing Denied June 25, 1943.

Appeal from St. Louis Circuit Court; Robert L. Aronson, Judge.

"Not to be reported in State Reports."

Suit for declaratory judgment by the Union Automobile Indemnity Association, by the Union Insurance Exchange Inc., its attorney in fact, and another, against Edward J. Reimann, Jr., and others for declaration that named defendant's liability to defendant William Edward Tuberville, a minor, was not within coverage of automobile liability policy. From an adverse judgment, the plaintiffs appeal.

Affirmed.

Strubinger, Tudor & Tombrink, Wm. H. Tombrink, and Cobbs, Logan, Roos & Armstrong, all of St. Louis, for appellants.

Geers & Goodman, Joseph Nessenfeld, and L. L. Lapin, all of St. Louis, for respondents Tuberville and Pulley.

No appearance for respondent Reimann.

BENNICK, Commissioner.

This is a suit for declaratory relief under the Declaratory Judgment Act, Secs. 1126-1140, R.S.Mo.1939, Mo.R.S.A. §§ 1126-1140.

The controversy involves an automobile policy issued by The Union Automobile Indemnity Association to one Edward J. Reimann, Jr., and the ultimate question to be adjudicated is whether the policy covers Reimann's liability, if any, to one William Edward Tuberville, a minor, growing out of an accident which occurred in East St. Louis, Illinois, on February 10, 1938, when Reimann struck Tuberville while driving an automobile not described in the policy or in any endorsement thereto.

The plaintiffs are The Union Automobile Indemnity Association and its attorney in fact, The Union Insurance Exchange, Inc., while joined as defendants are Reimann, Tuberville, and the latter's mother and guardian, Callie Tuberville Pulley.

The policy as originally issued was for a term of three years from September 24, 1935, and described the automobile covered by the policy as being a 1928 Ford.

Subject to all the printed conditions and warranties of the policy and to any special conditions endorsed thereon, the policy insured Reimann against actual loss or expense (within specified limits) from the liability imposed by law, arising or resulting from claims upon him by reason of the use, maintenance, or operation of the automobile described therein. By a further provision of the policy, the Association agreed to investigate all reported accidents covered by the policy; to defend, in the name of the assured, any suits, even if groundless, brought against the assured to recover damages under any civil action covered thereby; to pay all expenses incurred by the Association for such investigation or defense; and to pay all court costs taxed against the assured, together with all interest accruing after entry of judgment up to the date of payment or tender to the judgment creditor or his attorney of record, or until the Association had paid, tendered, or deposited in court such part of the judgment as did not exceed the Association's liability thereon.

By way of additional protection in the case of the purchase of a new automobile, the policy provided as follows: "Temporary Insurance When New Automobile Purchased: If the automobile described herein is sold and another purchased in its place by the named Assured from an authorized automobile dealer, this policy shall without notice transfer to the newly purchased automobile for a period of ten (10) days from date of delivery thereof, but this clause shall not extend or effect the `expiration' provisions of the policy."

The policy contained a warranty by the assured that "the automobile described is not, and will not be, rented to others or used to carry passengers for any expressed or implied consideration, except as follows: No exceptions."

Among the general conditions was a similar provision that unless otherwise provided by agreement in writing added to the policy, signed by The Union Insurance Exchange, Inc., the Association should not be liable for loss or damage "while the automobile described herein is used as a public or livery conveyance for carrying passengers for compensation, actual or implied, or while rented under contract or leased".

Elsewhere it was provided that the entire policy should be void in the event of the violation by the assured of any agreement, condition, or warranty contained therein, or in the application for the insurance, or in any endorsement that might be attached thereto; and that the policy was made and accepted subject to the provisions, exclusions, conditions, and warranties set forth therein or by written endorsement attached thereto, signed by The Union Insurance Exchange, Inc.

Some months after the issuance of the policy, Reimann disposed of the 1928 Ford which was described therein, and in turn bought a 1933 Plymouth coach, the purchase of which was reported to the Association, and a "change of car endorsement" issued, effective August 28, 1937. By such endorsement, which was duly countersigned by the Association's authorized representative, it was provided that the original policy had ceased to cover the automobile described therein (the 1928 Ford), and was extended to cover the 1933 Plymouth with respect to the perils insured against. No other formal "change of car endorsement" was ever issued for attachment to the policy; and so far as concerns the policy and its endorsements, the 1928 Ford and the 1933 Plymouth were the only automobiles at any time referred to as coming within the scope of the coverage granted.

As regards the practice followed by the Association in connection with the issuance of a "change of car endorsement", it was shown that the information usually reached the Association in the form of an application by the assured, or else a letter from the agent advising that the assured had purchased a different car and desired the coverage of the policy extended to it; that if the information received was sufficient for the Association's records, the endorsement was issued and transmitted to the agent to be countersigned and then delivered to the assured for attachment to the policy; that both Fords and Plymouths fell within a common small car bracket in the matter of fixing the premium rate; that neither the year nor the model affected public liability and property damage rates, but only the rates for the insurance against such perils as fire and theft where the current value of the automobile was material; and that where the application for a "change of car endorsement" indicated on its face that it was in good order, it became a matter of routine office practice for the endorsement to be issued.

Reimann lived in Trenton, Illinois, but worked in the City of St. Louis, and each day drove back and forth in his automobile. As a matter of fact, it would seem that there were quite a number of people from Trenton and the intervening Illinois towns who had their employment in St. Louis and commuted daily between their homes and their work, either by automobile, or else by bus, which was the only form of public transportation. Of those who came by automobile, some drove their own cars, but ordinarily carried others along with them, for which service each person thus transported customarily paid or contributed the sum of fifty cents for the daily round trip. Reimann likewise followed this practice, and for two years or more had provided transportation for his brother, Ewald Reimann; his cousin, Ruth Krumpe; and a friend, Rayburn Wendler. All three lived on Reimann's route to and from St. Louis; and all three rode with him regularly, although there were days when one or the other might not go to work, or else for one reason or another might take the bus or ride with some one else. All parties insisted that there was no definite arrangement regarding payment for such transportation, but that all of them were aware of the local custom which prevailed, and in conformity with it paid Reimann at the rate of fifty cents each day, not as a fare, strictly speaking, but rather as each person's proportionate contribution towards the expense of the trip.

On the morning of February 10, 1938, while driving through East St. Louis on his way to work, Reimann had the misfortune to strike and injure young Tuberville, his codefendant in this case. Accompanying Reimann at the time were his brother, Ewald Reimann, his cousin, Ruth Krumpe, and his friend, Rayburn Wendler, all of whom were being transported to their work in accordance with the practice by which they were customarily carried.

The accident was promptly reported to the Association and an investigation begun which revealed that the automobile which Reimann was driving at the time of Tuberville's injury was not the 1933 Plymouth described in the "change of car endorsement" of August 28, 1937, but a 1936 Ford for which Reimann had traded on November 7, 1937, three months before the accident. There had concededly been no formal "change of car endorsement" issued with respect to the 1936 Ford, nor, according to plaintiffs' evidence, had an application for such an endorsement ever reached the Association. It was shown, however, that upon acquiring the car, Reimann had told his father to report its purchase to one Schoene, the Association's agent in Trenton and thereabouts; and while Schoene denied that the information was ever imparted to him, the father's testimony sufficed (as we shall subsequently show) to make an issue of the question. As for the use to which the car was put, Reimann admitted that during the whole time that he had been driving the 1936 Ford, he had been carrying his three usual riders with him, just as he had done with previous cars, and was doing on the morning that the accident occurred.

After the making of the initial investigation...