Ward v. Gregory, 7594

• Decision Date: 01 October 1957
• Docket Number: No. 7594,7594
• Citation: 305 S.W.2d 499
• Parties: Vernon WARD, Plaintiff-Appellant, v. Claud O. GREGORY, Defendant (National Indemnity Company, Garnishee-Respondent).
• Court: Missouri Court of Appeals

Page 499

305 S.W.2d 499

Vernon WARD, Plaintiff-Appellant, v. Claud O. GREGORY, Defendant (National Indemnity Company Garnishee-Respondent).

No. 7594.

Springfield Court of Appeals, Missouri.

Oct. 1, 1957.

J. W. Grossenheider, Lebanon, for appellant.

Meredith B. Turner, Kenneth H. Reid, Steward, Reid & Turner, Springfield, for respondent.

McDOWELL, Presiding Judge.

This is a garnishment proceeding. The appeal is from a judgment rendered in the Circuit Court of Dallas County, Missouri, in favor of garnishee, National Indemnity Company. The proceeding was in aid of an execution by Vernon Ward against defendant, Claud O. Gregory, on a judgment obtained against Gregory for injuries growing out of an automobile accident.

The issues are raised by appellant's first amended denial to garnishee's answer and the reply to such denial.

Plaintiff's first amended denial to garnishee's answer states:

'That prior to the institution of this action and prior to the accident over which this action was instituted the said Claude O. Gregory in consideration of a premium in the amount of $39.00 paid to the garnishee received from the garnishee its written obligation to insure the said Claud O. Gregory against any liability occasioned by his negligent operation of his 1950 Ford automobile; a copy of said written agreement is annexed hereto and is marked plaintiff's Exhibit 'B' and is incorporated herein by reference.

'That at all times herein mentioned the National Indemnity Company was obligated under its written agreement aforementioned and is now obligated to pay to this plaintiff the sum of $2,000.00 plus interest thereon at the rate of 6 per cent per annum and all the costs expended by the plaintiff in the aforementioned law suit.'

The answer of garnishee was a denial that it was obligated under any policy of insurance or under any agreement to pay any sum of money for which Claud O. Gregory might have become legally liable because of injuries sustained by Vernon Ward as the result of negligence of Gregory in the operation of his Ford automobile.

The answer pleaded that exhibit (B) attached to plaintiff's amended denial to garnishee's answer was issued in behalf of garnishee by its agent, but that said exhibit provided for a trip coverage between the cities of Issaquah, Washington, and Lebanon, Missouri, and provides that coverage ceases 'immediately upon arrival of unit described at its destination'; that said unit had arrived at Lebanon, Missouri, and had completed the trip prior to the date of accident for which plaintiff instituted the proceedings against Gregory and prior to the accident and that no coverage was in force and effect under the terms of exhibit (B) or any contract, policy of insurance or agreement of any kind at the time of the accident for which plaintiff secured judgment against Gregory.

Briefly stated, the facts show that Claud O. Gregory, a Sergeant in the U. S. Army, whose home was in Lebanon, Missouri, arrived in the state of Washington from overseas June 26, 1955; that he purchased the automobile described in the binder in evidence, as plaintiff's exhibit (B). On July 6, 1955, Gregory called at the Washington State Bank in Issaquah for the purpose of purchasing liability insurance on his newly acquired car, which he intended to drive from Issaquah to Lebanon; that he talked to one, Mr. Sherrill, who was in charge of the insurance department of the bank. Gregory testified 'Q. What type of insurance did you tell him you wanted, Claud? A. I wanted term insurance, about six months or a year.

'Q. Did he tell you whether or not he could give you that type of insurance? A. Yes, sir, he said that they could not write it up for a soldier that was leaving the State, term insurance, for a six months period or a year.

'Q. Go ahead, Claud; * * *? A. Well, he said he could sell me en route insurance, and I stated I didn't want en route insurance, for the simple reason that I hadn't lived here for a right smart while, I had been in the Service, and I would have to find a company that would cover me after I got back here, and being as there was no company there that would cover me I didn't know whether I could get one after I got there, and so I wanted the term insurance, for thirty days if I could get it, but he said he could only cover me for fifteen.

'Q. Did you then agree that that was the type of insurance that you would purchase that day? A. Yes, sir, I did.'

Witness testified that Sherrill figured out the premium and told him it would be $39 and he received a receipt from the bank. (The receipt is in evidence as plaintiff's exhibit 2.) The binder was mailed to Gregory's home in Lebanon, which he received some three or four days after the return and before the collision. Gregory stated that when he purchased the insurance it was his understanding that the coverage was to be from the 6th to the 21st of July.

On cross-examination Gregory stated that he could not recall whether Sherrill placed a telephone call while he was in the bank. He testified:

'Q. Did he not tell you that he was going to have to call Seattle, Washington, with reference to this binder that was issued? A. He said they would call in and have my binder mailed to me; that is the reason I had him to write this receipt, so I would have some evidence that I had some insurance while I was traveling.

'Q. He told you, didn't he, that his company couldn't issue such a binder as you had discussed with him, and he would have to get it in Seattle, or something to that effect? A. I think he said he could not issue me a binder for six months or a year, but he said he could give me a binder for an en route or this fifteen day policy that you sold me; that was the understanding I had with him.

'Q. He told you that they could issue one for an en route? A. Yes, sir, or for a short period of time.

'Q. And did you tell him where you wanted to go, and so on? A. Yes, sir; he asked me where did I want it, and I told him to Lebanon, and I asked him if that would cover the surrounding area, that my folks lived out in the country from there, and he said that it would take care of the surrounding vicinity, as long as I was in that vicinity.

'Q. Did you tell him when you planned to leave Issaquah for Lebanon? A. Yes, sir; I told him that day.'

Witness stated he did not know the distance from Issaquah to Lebanon but that it was something like 2,000 miles; that he drove directly to Lebanon and arrived there July 10th; that he made no attempt after arrival to purchase other insurance; that he was in Lebanon some six days before the accident in which Vernon Ward was injured and for which injuries the $2,000 judgment was secured against him.

Estes D. Sherrill testified that he was Assistant Manager of the Washington State Bank in July, 1955, and Manager of the Insurance business; that in this position he acted as broker for customers of the bank and others in securing automobile insurance. He testified he had no authority to bind the National Indemnity Company with insurance coverage or to sign any policy or binder for that company.

His testimony was that he remembered Gregory calling at the bank July 6, 1955, and requesting insurance; that Gregory came into the bank and requested coverage for his 1950 Ford for 5/10/5 Public liability and property damage, $100 deductible, fire and theft insurance; that he indicated to Gregory that he could not place the insurance in one of the bank's companies. He testified that they called the Northwest General Agency and asked them to issue a trip policy while Gregory was en route to Lebanon, Missouri; that the amount of the premium for the coverage was determined by the Northwest General Agency. He said it was his intention to obtain a trip coverage policy from Issaquah to Lebanon.

Lucille E. Succo testified that in July, 1955, she was employed as Assistant Underwriter by Northwest General Agency; that her duties were underwriting policies of insurance; that ordinarily binder policies were written by others but that she occasionally prepared them. She stated all binders were prepared under her supervision and she signed most of them.

Witness said she should not recall clearly the call from Washington State Bank made on July 6, 1955, regarding coverage insurance for a soldier. She examined her hand-written notes, a photostatic copy of which is attached to her deposition, and then said that the notes refreshed her memory as to what occurred when the binder was written. She testified that the binder was to cover a trip between Issaquah, Washington, and Lebanon, Missouri. She gave this answer: 'Yes. The ordinary procedure then would be to type up a binder and allow them fifteen days for that trip, but it would definitely only from city to city, or place to place, as shown.' She stated Gregory was given fifteen days to make the trip and if it took less time the coverage would cease upon arrival at his destination and that was the intention the company had in writing the binder and that Mr. Sherill had in ordering it. She gave this answer: 'Yes. I am certain it would have been understood. It was explained to him what coverage we could give the soldier.'

She testified that the premium on the binder was figured on a trip basis; that a copy was sent to the agent (in this case the Washington State Bank), and a copy retained in their files. She stated no broker ordering insurance coverage had authority to sign the policy; that all policies for the National Indemnity Company were signed in the Northwest General Agency. She said it was difficult to obtain insurance for soldiers and the Northwest General Agency was fortunate to offer them trip coverage where they were going home. She said the 'fifteen days' in the binder was solely to limit the time in which Sergeant Gregory was to make the trip from Issaquah to Lebanon; that that was the very maximum time designated for the trip.

Both briefs of appellant and respondent state...