Voss v. American Mut. Liability Ins. Co., 30464
| Decision Date | 20 December 1960 |
| Docket Number | No. 30464,30464 |
| Parties | Goldie VOSS (Plaintiff), Appellant, v. AMERICAN MUTUAL LIABILITY INSURANCE COMPANY, a Corporation (Defendant), Respondent. |
| Court | Missouri Court of Appeals |
William P. Carleton, Melvin L. Hertzman, St. Louis, for plaintiff-appellant.
Heneghan, Roberts & Cole and George E. Heneghan, St. Louis, for defendant-respondent.
DOERNER, Commissioner.
By this action plaintiff sought to recover actual damages of $5,000 and punitive damages of a like amount. The grounds alleged were that the defendant, although it had previously agreed to insure plaintiff under an automobile liability policy, refused to acknowledge to the Safety Responsibility Unit that it was her insurer, as a result of which plaintiff lost the right to drive an automobile for one year. Plaintiff had a verdict and judgment for actual damages of $2,400 and punitive damages of $2,000. Thereafter, the court sustained defendant's appropriate after-trial motion, set aside the judgment, and entered judgment in favor of defendant. In the alternative, the court also sustained defendant's motion for a new trial, on the grounds error was committed in giving certain specified instructions requested by plaintiff. Plaintiff has duly appealed.
The notice of appeal in this case was filed on September 18, 1959, at a time when our monetary jurisdiction was limited in matters in dispute involving $7,500 or less. Defendant challenges our jurisdiction of this appeal on the grounds that the amount in dispute on appeal is the sum prayed for in plaintiff's petition, $10,000, it being contended that when the judgment for plaintiff was set aside, and judgment entered for defendant, the amount in dispute reverted to the sum prayed for in plaintiff's petition. Langhammer v. City of Mexico, Mo., Mo., 327 S.W.2d 831 and Mosley v. St. Louis Public Service Company, Mo., 301 S.W.2d 797, are cited in support of defendant's argument. The facts in those cases are totally dissimilar to those in the instant case, and the authorities cited furnish no support for defendant's position. What the plaintiff seeks here is the reinstatement of the judgment in her favor for $4,400. That, then, is the amount in dispute. The facts in the instant case are precisely the same as those in Reaves v. Rieger, 360 Mo. 1091, 232 S.W.2d 500, in which the Supreme Court held contrary to defendant's contention. On the authority of that case we rule that we have jurisdiction.
Under the circumstances of this case, we must consider only the evidence most favorable to the plaintiff, together with the reasonable inferences to be drawn therefrom. Le Page v. Metropolitan Life Ins. Co., Mo., 314 S.W.2d 735. Viewing the record in that light, we find the pertinent facts to be that early in 1958 plaintiff purchased a used 1949 Chevrolet car. Plaintiff sought to obtain liability insurance to cover both her operation of the car and that of her brother, Bill Mayfield, then 17 years of age, who lived in the same household with plaintiff and their mother. On March 21, 1958, plaintiff applied to an insurance company referred to in the evidence as All State, and was issued a 30-day binder, but on March 28, 1958, that company rejected her application because of Bill's age. Plaintiff testified that she then telephoned several other insurance companies, which declined to receive an application when they learned that Bill would be permitted to drive the car.
On April 21, 1958, plaintiff telephoned the St. Louis office of defendant, was assigned to a J. F. Gallagher, and an appointment was made for Gallagher to call upon plaintiff at her home on April 23, 1958. Gallagher called at the appointed time, and plaintiff informed him that she wanted coverage of '* * * just the amount that covered responsibility,' which Gallagher advised her would be $5,000 for an injury to one person, $10,000 for injuries to two or more persons, and $5,000 for property damage. Gallagher also informed plaintiff that the premium would be $101 per year, and it was agreed that the premium would be paid in three installments of $33.67 each. According to plaintiff, Gallagher asked her various questions regarding her age, occupation, marital status, description of her automobile and other matters, for the purpose of filling out an application form, to all of which questions, she testified, she answered truthfully. Gallagher then gave plaintiff the application to sign, but she did not read it, other than the part which stated the amount of coverage and the time when the policy would be effective, because, plaintiff stated, she assumed Gallagher had filled out the form in accordance with the information she had given him. Plaintiff obtained a check from her mother for $33.67, payable to defendant, and gave it to Gallagher, and the latter made out a receipt on the back of one of his business cards, which he signed and delivered to plaintiff. Dated April 23, 1958, the receipt read
Plaintiff then inquired of Gallagher when she would receive her policy, and was told that she would receive it in about two weeks. As Gallagher was about to depart plaintiff told him that she was glad to get the application in because she had been afraid to drive her car without insurance, and Gallagher assured plaintiff that she had nothing to worry about; that she was covered then; and that she would have her policy in two weeks. Plaintiff's brother Bill, who was present during the interview, corroborated plaintiff's testimony. As Bill expressed it, Gallagher said that the coverage would be effective 'Right from the time he gave us the receipt.' Not having received the policy when the two weeks were up, and as she worked during the day, plaintiff asked her brother to contact the defendant. Bill Mayfield testified that he telephoned Gallagher about May 7 or 8, and inquired where the policy was, and that Gallagher assured him the policy would be issued, that he was covered, and that he had nothing to worry about.
On Sunday, May 25, 1958, while driving her car southwardly on U. S. Highway 67, about 3 miles north of Bonne Terre, plaintiff was involved in a collision with a car preceding her when both sought to avoid being hit by a third car, going in the opposite direction, which was straddling the center line. Plaintiff and her young daughter were injured, and plaintiff's car was damaged. Defendant developed, on cross-examination, that at some unspecified later date plaintiff received a settlement from the insurance company which insured the 'culprit.'
The next day, May 26, plaintiff telephoned Gallagher to report the accident. According to plaintiff, Gallagher did not take the report of the accident, and instead told plaintiff he would call her later. No call was received, but plaintiff received a letter from defendant, signed by Gallagher, dated and postmarked June 3, 1958, advising her that the defendant had declined plaintiff's application for automobile insurance coverage and that it was enclosing its check for $33.67 to refund plaintiff's deposit. In the interim, plaintiff had employed counsel, and in accordance with his advice, on June 2 a report of the accident was made to the Safety Responsibility Unit of the Department of Revenue, and a copy of that report was mailed to the defendant on June 3, 1958. It appears from the record that thereafter plaintiff received letters from lawyers representing other persons involved in the collision of May 25, and that plaintiff's counsel wrote to defendant. None of the letters of plaintiff's counsel to defendant were introduced in evidence. However plaintiff did introduce two letters from defendant to plaintiff's counsel. The first, dated June 18, 1958, reads: By its second letter, dated June 19, 1958, defendant returned to plaintiff's counsel letters from other attorneys, presumably those received by plaintiff from counsel for other persons involved in the collision. It should be added that plaintiff returned the refund check to defendant.
Apparently the matter was quiescent until plaintiff received a letter from the Safety Responsibility Unit, dated August 7, 1958, in which she was advised that the insurance Form (SR-21) completed by plaintiff as a part of her accident report had been submitted to the insurance company she had named as her liability insurance carrier, and that 'SR-21 has been returned from the the American Mutual Liability Ins. Co. stating, 'We do not insure." Subsequently, plaintiff received a second communication from the same Unit, dated August 11, 1958, advising her that unless security in the sum of $1,375 was deposited with the Director of Revenue, plaintiff's privilege of operating an automobile, and that of using the motor vehicle owned by her, was suspended as of August 26, 1958, and that her license, registrations and plates must be surrendered on or before that date, or enforcement would be accomplished by a Missouri Peace Officer. Plaintiff testified that she was financially unable to deposit the sum of $1,375, and to avoid the embarrassment of having the police call at her home for her driver's license and the license plates, she authorized her counsel to surrender them.
The testimony of Gallagher, defendant's only witness, contradicted that of plaintiff and her brother in all material respects. In particular, he testified that when he learned that Bill Mayfield would operate plaintiff's car he informed plaintiff that all he could do was to take the application and turn it in to his company, which would make an investigation and...
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