White v. Smith

• Citation: 440 S.W.2d 497
• Decision Date: 16 April 1969
• Docket Number: No. 8833,8833
• Parties: Ellis WHITE and Della White, Plaintiffs-Respondents, v. Jack SMITH d/b/a Highlandville Packing Company, Defendant, Countryside Casualty Company, a corporation, Garnishee-Appellant.
• Court: Missouri Court of Appeals

Page 497

440 S.W.2d 497

Ellis WHITE and Della White, Plaintiffs-Respondents, v. Jack SMITH d/b/a Highlandville Packing Company, Defendant Countryside Casualty Company, a corporation, Garnishee-Appellant.

No. 8833.

Springfield Court of Appeals, Missouri.

April 16, 1969.

Farrington, Curtis & Strong, Thomas Strong, Arthur E. Curtis, Springfield, for garnishee-appellant.

White & Dickey, Turner White, Springfield, for plaintiffs-respondents.

STONE, Judge.

This is a garnishment imbroglio. On June 2, 1964, plaintiffs Ellis White and Della White, an elderly married couple who since 1920 had owned and resided on a 60-acre tract just south of Highlandville, Missouri, instituted suit in the Circuit Court of Christian County against defendant Jack Smith d/b/a Highlandville Packing Company, who owned and operated an abattoir or slaughterhouse on the tract just north of plaintiffs' acreage, there carried on a 'general custom slaughtering and processing' business, and in connection therewith maintained a nearby lagoon or pond into which blood, offal and waste material from the slaughterhouse were drained. Plaintiffs' suit was 'for nuisance,' with a prayer for an injunctive decree abating the nuisance and for monetary damages. Following trial on October 15, 1965, the court entered a judgment and decree granting the requested injunctive relief and awarding plaintiffs the sum of $6,000 as damages. There was no appeal therefrom.

At all times herein material, defendant Smith was the named insured in a 'General Liability Insurance Policy' issued by Countryside Casualty Company which obligated it 'to pay on behalf of the insured all sums (within the policy limits of $25M/$50M/$10M) which the insured shall become legally obligated to pay as damages because of bodily injury, sickness or disease . . . and as damages because of injury to or destruction of property, including the loss of use thereof, caused by accident and arising out of the hazards hereinafter defined and designated in the declarations.' (All emphasis herein is ours.) 'Operations and Premises,' the hazard designated in the declarations, was defined as '(t)he ownership, maintenance or use of premises, and all operations.'

This garnishment proceeding under Rule 90 (Chapter 525) ¹ against Countryside, as garnishee, was transferred upon stipulation to the Circuit Court of Greene County, where the cause was tried to the court and taken under advisement, written briefs were submitted by opposing counsel, and in due time the learned trial judge filed a scholarly six-page 'Memorandum and Order' and entered judgment in favor of plaintiffs White and against garnishee Countryside for $6,000 with interest thereon in the additional sum of $918. From that judgment, garnishee appeals.

The respective parties here urge disposition of the appeal on considerations short of the meritorious issues, and to those preliminary matters we first attend. Plaintiffs-respondents vigorously press their 'motion to dismiss appeal and affirm judgment' because (a) 'appellant (Countryside) did not deliver copies of appellant's brief forty-five days before this cause was set for hearing (Rule 83.06(a)) nor within any other time agreed upon by counsel' and (b) 'the argument portion of appellant's brief does not have specific page references to the transcript on appeal.' Passing the patent inconsistency of moving conjunctively for dismissal of the appeal and affirmance of the judgment, plaintiffs' motion is not without merit. However, even though a typewritten copy of garnishee's-appellant's brief was not delivered until the twenty-ninth day before the date of hearing, plaintiffs-respondents sought no extension of time for preparation of their brief but served and filed it posthaste on the thirteenth day before the date of hearing. Cf. Fulkerson v. Laird, Mo.App., 421 S.W.2d 523, 527(8). In response to plaintiffs' complaint that the argument section of garnishee's brief had no specific page references to the transcript on appeal (Rule 83.05, subsecs. (a)(4) and (d)), garnishee-appellant undertook to supply the deficiency by including in its reply brief a list of eighteen 'page and line numbers in appellant's (original) brief' at which certain 'omitted transcript page numbers' should be interlined. Cf. Wilt v. Waterfield, Mo., 273 S.W.2d 290, 292(1). It would seem that garnishee's counsel more appropriately might have sought leave of court to carry out the tedious task of locating the 'page and line numbers' and making the desired interlineations in the ten copies of the original brief theretofore filed. However, since it is the settled judicial policy to construe and apply the rules of civil procedure liberally 'to promote justice, to minimize the number of cases disposed of on procedural questions and to facilitate and increase the disposition of cases on their merits' (Rule 83.24), and since our primary concern is with the cause of the litigants (Fielder v. Production Credit Ass'n., Mo.App., 429 S.W.2d 307, 310(1)), we conclude that, in the interests of justice, plaintiffs'-respondents' motion to dismiss appeal should be overruled. Rule 83.09.

Garnishee's preliminary assault upon the judgment nisi is that the trial court erred in overruling garnishee's motion for judgment at the close of plaintiffs' evidence 'for the reason that plaintiffs failed to allege (in their denial of garnishee's answers to interrogatories) facts sufficient to state a cause of action against garnishee.' Rule 90.18 provides that such denial 'shall contain, specially, the grounds upon which a recovery is sought against the garnishee.' Instant plaintiffs' denial (incorrectly titled 'Plaintiffs' Reply to Garnishee's Answers') specially averred 'that garnishee, by a policy of casualty insurance issued to the said Jack Smith (defendant), agreed to indemnify the said Jack Smith against any judgments for damages obtained against him, growing out of the operation of the packing plant, which was the subject of plaintiffs' action' and 'that garnishee is indebted to the said Jack Smith in an amount in excess of that for which plaintiffs obtained judgment against said defendant.' Upon the issues joined by plaintiffs' denial and garnishee's reply thereto in the nature of a general denial, the parties proceeded to trial. At the outset of the hearing, garnishee's policy was received in evidence by stipulation of opposing counsel and plaintiffs' original petition in the nuisance action was admitted without objection. After defendant and both plaintiffs had been examined and cross-examined at length and plaintiffs had rested their case, garnishee filed its 'Motion for Judgment' in which it challenged for the first time the legal sufficiency of plaintiffs' denial of garnishee's answers to interrogatories. Garnishee's argument here is that by its policy it did not agree, as was averred in plaintiffs' denial, 'to indemnify (defendant) against any judgments for damages' but only contracted to indemnify him for all sums which he might become legally obligated to pay 'as damages because of injury . . . caused by accident.'

When garnishee made no attack upon plaintiffs' denial but replied to the merits and proceeded to trial, it 'waived all defects except those so fundamental in character that a (judgment) could not cure them.' Kiernan v. Robertson, 116 Mo.App. 56, 60, 92 S.W. 138, 139(1). We do not regard the failure of plaintiffs' denial to track the precise language of garnishee's policy as a defect 'so fundamental in character' that the subsequent judgment did not cure it. See Hall v. Weston, Mo., 323 S.W.2d 673, 680; Taylor v. Dollins, 205 Mo.App. 246, 248, 222 S.W. 1040, 1041. Furthermore, if plaintiffs' denial was insufficient, all parties proceeded to trial as though the ultimate issue, i.e., whether garnishee was liable under its policy to pay the monetary judgment obtained by plaintiffs in the nuisance action, had been raised properly in the pleadings, so in any event the denial should be treated as amended to raise that issue. Rule 55.54; § 509.500; Saunders v. Crusader Life Ins. Co., Mo.App., 421 S.W.2d 563, 565(2); Greene v. Morse, Mo.App., 375 S.W.2d 411, 418(11), and cases there collected in note 16. With the record conclusively demonstrating that garnishee was in no wise misled or prejudiced by the alleged imperfection in plaintiffs' denial (cf. Knight v. Swift & Co., Mo., 338 S.W.2d 795, 800(8)), garnishee's preliminary point is rejected as without merit.

We proceed to the two meritorious questions briefed and presented on this appeal, to wit, (1) whether or not the judgment in the nuisance action collaterally estops garnishee to deny in the garnishment proceeding that plaintiffs' damages were 'caused by accident' and (2) if garnishee is not so collaterally estopped, whether or not such damages were 'caused by accident.'

Of collateral estoppel. As noted at the outset, the nuisance action was instituted on June 2, 1964. During August 1964, while that action was pending upon plaintiffs' original petition and defendant's motions for costs, to dismiss, to make more definite and certain, and to strike, defendant's personal counsel tendered defense of the action to Countryside, which declined such defense on the ground that 'the circumstances and situations complained of in the petition (were) not matters covered' by its policy.

Defendant's motion to make more definite and certain having been sustained in certain particulars, plaintiffs' first amended petition (not materially or significantly different from their original petition) was filed on October 10, 1964. In that amended petition on which issue was joined, plaintiffs made several complaints (here lettered to facilitate subsequent reference thereto), to wit: (a) that defendant so operated the slaughterhouse that foul and noxious odors were permitted to escape therefrom and to blow over plaintiffs' lands and in and around their dwelling; (b) that, at various points...