Ward v. State Farmers Mut. Tornado Ins. Co. of Mo.

• Decision Date: 14 April 1969
• Docket Number: No. 53288,No. 2,53288,2
• Citation: 441 S.W.2d 1
• Parties: Loyd WARD, Plaintiff-Appellant, v. STATE FARMERS MUTUAL TORNADO INSURANCE COMPANY OF MISSOURI, Defendant-Respondent, Peggy Lee Ward, a Minor, by Donna Ward, Her Next Friend; Dianna Mae Ward, a Minor, by Her Next Friend, Donna Ward, interveners-Appellants
• Court: Missouri Supreme Court

Page 1

441 S.W.2d 1

Loyd WARD, Plaintiff-Appellant, v. STATE FARMERS MUTUAL TORNADO INSURANCE COMPANY OF MISSOURI Defendant-Respondent Peggy Lee Ward, a Minor, by Donna Ward, Her Next Friend Dianna Mae Ward, a Minor, by Her Next Friend Donna Ward, interveners-Appellants.

No. 53288.

Supreme Court of Missouri, Division No. 2.

April 14, 1969.

Rehearing Denied May 12, 1969.

David Collins, Hadley E. Grimm and Edwards, Hess & Collins, Macon, for defendant-respondent.

J. B. Smoot, Memphis, for plaintiff-appellant.

Tom Brown, Edina, for interveners-appellants.

DONNELLY, Judge.

This is a suit for declaratory judgment brought by Loyd Ward, plaintiff, against State Farmers Mutual Tornado Insurance Company of Missouri, defendant, in which Peggy Lee Ward and Dianna Mae Ward, minor children of Orville Ward, deceased, intervened.

The petition for declaratory judgment alleges in part that on the 10th day of March, 1963, the defendant issued to 'Ward Brothers (Loyd and/or Orville)' an automobile insurance policy; that on November 22, 1963, while the policy was in full force and effect, Loyd Ward was driving the insured truck, and his brother, Orville Ward, one of the partners of Ward Brothers, was a passenger in the truck; that an accident occurred and Orville Ward received injuries from which he died on January 12, 1964; that on September 16, 1964, a petition was filed in the Circuit Court of Knox County, Missouri, in which Peggy Lee Ward and Dianna Mae Ward are plaintiffs and Loyd Ward is defendant; that in said petition Peggy Lee Ward and Dianna Mae Ward seek to recover damages from Loyd Ward for the wrongful death of their father, Orville Ward; that under the terms of the policy the defendant insurance company is obligated to pay on behalf of Loyd Ward any judgment that might be rendered against Loyd Ward, and is obligated to defend Loyd Ward against the action brought against him by Peggy Lee Ward and Dianna Mae Ward, and to pay all expenses in connection therewith, including all costs that might be taxed against him; and that the defendant insurance company, although requested to do so, has failed and refused to defend the action by Peggy Lee Ward and Dianna Mae Ward, and has notified Loyd Ward that it will not pay any judgment rendered against him in said action.

The trial court found 'that defendant is not obligated under the terms and provisions of the policy in evidence to defend plaintiff in the damage suit which is pending in the Circuit Court of Knox County, Missouri, in which interveners are the plaintiffs and plaintiff herein is the defendant; that in the event a judgment is rendered against plaintiff (Loyd Ward) in said damage suit, defendant (insurance company) will not be obligated to pay said judgment; * * *.' Plaintiff, Loyd Ward, and interveners, Peggy Lee Ward and Dianna Mae Ward, appealed to this Court.

The petition for the wrongful death of Orville Ward, deceased, filed by Peggy Lee Ward and Dianna Mae Ward, seeks damages in the amount of $25,000. Jurisdiction is in this Court. Crouch v. Tourtelot, Mo.Sup., 350 S.W.2d 799.

Loyd Ward and Orville Ward operated a jointly-owned farm in Knox County, Missouri. They jointly bought and sold livestock. Both devoted full time to the joint operation. On the day of the accident, while on partnership business, with Loyd Ward operating the partnership truck, they were 'headed for a cattle sale in Edina, Missouri, for the purpose of purchasing cattle for their joint operation.' The parties agree a partnership existed. Section 358.060, RSMo 1959, V.A.M.S.

In the policy of insurance, the named insured is 'Ward Brothers (Loyd &/ or Orville).' The question is whether the insurance policy provides coverage for the wrongful death of Orville Ward. Appellants introduced the policy in evidence and seek a construction of its provisions. Therefore, in determining the question of coverage, we will 'consider any clause or provision therein (even though not pleaded) which may shed light upon any of its other provisions.' Ward v. Curry, Mo.Sup., 341 S.W.2d 830, 838.

The applicable general rules of law are well-stated in McKinney v. Truck Insurance Exchange, Mo.App., 324 S.W.2d 773, 777, as follows: 'Insurance contracts should be construed by the same general rules applicable to other written contracts. * * * Where there is no ambiguity, there is no room for construction, and the unequivocal language of the contract must be given its plain meaning unless contrary to public policy or positive law. * * * Of course, if the contract is reasonably open to different constructions, the one most favorable to the insured must be adopted; but that principle does not authorize a perversion of language or the exercise of inventive power to create an ambiguity when none exists. * * * And, as the lodestar of construction of other contracts is the intention of the parties * * *, so a court discharges its full duty with respect to construction of an insurance contract when it ascertains and gives effect to the intention of the parties thereto. * * *'

We must first conclude that, if we assume Orville Ward was a named insured under the policy, the policy does not provide coverage for his wrongful death because Exclusion F of the policy provides that the policy does not apply '* * * (2) to bodily injury to the insured * * *.' Appellants urge, however, that the 'only logical conclusion to be drawn is that the insured is the partnership by the name of Ward Brothers.'

We, therefore, consider the issue as appellants present it, and determine whether, if we assume 'the partnership by the name of Ward Brothers' is the named insured, the policy of insurance provides coverage for the death of Orville Ward.

The insurer, under the policy of insurance, agrees with the insured, to 'pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of bodily injury, sickness or disease, including death at any time resulting therefrom, sustained by any person, caused by accident and arising out of the ownership, maintenance or use of the automobile.' (Emphasis ours.)

The question then becomes whether 'the partnership by the name of Ward Brothers' may 'become legally obligated to pay' damages for the death of a partner (Orville Ward) resulting from negligent acts of the other partner (Loyd Ward) committed while engaged in the partnership business.

In 68 C.J.S. Partnership § 109, it is stated that an 'action at law ordinarily is not maintainable between a partner and his firm.'

In 1949, the General Assembly enacted § 358.130, RSMo 1959, V.A.M.S. (Section 13 of the Uniform Partnership Act), which provides: 'Where, by any wrongful act or omission of any partner acting in the ordinary course of the business of the partnership or with the...