Wise v. Strong

• Decision Date: 01 November 1960
• Docket Number: Nos. 7916,7917,s. 7916
• Citation: Wise v. Strong, 341 S.W.2d 633 (Mo. App. 1960)
• Parties: Marilyn Yvonne WISE, Plaintiff, v. Lennon W. STRONG, Defendant and Third-Party Plaintiff-Appellant, v. TRAVELERS INDEMNITY COMPANY, a Corporation, Third-Party Defendant-Respondent. Iva Beatrice MOORE, Plaintiff, v. Lennon W. STRONG, Defendant and Third-Party Plaintiff-Appellant, v. TRAVELERS INDEMNITY COMPANY, a Corporation, Third-Party Defendant-Respondent.
• Court: Missouri Court of Appeals

Page 633

341 S.W.2d 633

Marilyn Yvonne WISE, Plaintiff, v. Lennon W. STRONG, Defendant and Third-Party Plaintiff-Appellant, v. TRAVELERS INDEMNITY COMPANY, a Corporation, Third-Party

Defendant-Respondent.

Iva Beatrice MOORE, Plaintiff, v. Lennon W. STRONG, Defendant and Third-Party Plaintiff-Appellant, v. TRAVELERS INDEMNITY COMPANY, a Corporation, Third-Party

Defendant-Respondent.

Nos. 7916, 7917.

Springfield Court of Appeals, Missouri.

Nov. 1, 1960.

Mann, Walter, Powell, Burkart & Weathers, by Jack Powell, Springfield, for appellant.

George M. Flanigan, McReynolds, Flanigan & Flanigan, Carthage, for respondent.

McDOWELL, Judge.

Appellant appeals in each of the within numbered cases, from final judgment rendered in the Circuit Court of Greene County, Missouri, in favor of third-party defendant, respondent, against third-party plaintiff, appellant, on appellant's cross-claims against respondents seeking to make it defend said suits in behalf of appellant and to be responsible for payment of any damages allowed plaintiffs against appellant, together with court costs and attorney fees incurred.

The original petition sought damages for personal injuries against the appellant in excess of $15,000 in each case. The court ordered separate trials in order that the suits by the plaintiffs against appellant could be tried separately and apart from the cross-petitions filed by appellant against respondent. The trial of claims against respondent by appellant was thereupon had. No issues in the personal injury suits are involved in the cases now on appeal. The trial resulted in final judgment in favor of respondent as to appellant's claims and appellant appealed.

After notice of appeal was filed in each case to the Supreme Court, the total demands of the original plaintiffs in each suit were reduced to $2,500 in each case and it was conceded that the total costs in each case, including attorney fees, will not exceed $2,500, and the causes were, by the Supreme Court, transferred to this court for judgment.

The two causes have common questions of law and fact as between appellant and respondent, and, upon motion by appellant, said causes were ordered consolidated for opinion.

These actions were submitted to the trial court on an agreed statement of facts, which, in part, stated:

That on or about December 14, 1957, Lennon W. Strong, defendant and third-party plaintiff, was operating a 1955 Nash automobile owned by Floyd L. Garver. Said Nash was involved in an accident December 14, 1957, and, as a result of said accident, Marilyn Yvonne Wise and Iva Beatrice Moore, plaintiffs in the above causes, filed actions seeking damages against Strong for alleged injuries arising out of his alleged negligence in the operation of the Nash automobile at the time of the accident. The title to said Nash automobile was obtained by Garver on December 6, 1957. He acquired legal title to a Hillman Minx car December 12, 1957, and, on that date, purchased from defendant, The Travelers Indemnity Company, a corporation, its family automobile policy No. MP 3479007, which was issued in the name of Floyd L. Garver, for the policy period of December 12, 1957, to December 12, 1958. (A true copy of said policy has been attached to the second amended petition, filed in each of these causes.) The policy had not been cancelled up to, and including, the date of accident referred to in these cases. At the time of the accident Strong was driving the Nash car with the permission of Garver. Strong, defendant and third-party plaintiff, duly notified The Travelers of the accident and pending suits and that he claimed the company was obligated to defend him in said suits and pay any judgment and costs arising therefrom but said third-party defendant refused and continues to refuse to defend these actions on his behalf.

The sole issue presented in each of the cases is: Was the Nash automobile insured under the family automobile policy issued to Garver?

Appellant contends that the policy of insurance issued by defendant (hereinafter referred to as The Travelers) provided coverage for all automobiles owned by Garver as to liability, unless specifically excluded by endorsement; that since the Nash automobile was an owned car of Mr. Garver at the time of the issuance of the policy and was not specifically excluded by endorsement, the provisions of the policy inured to the benefit of appellant, who was operating said Nash with the permission of the owner, Garver.

Appellant says that the insurance policy in question is not the long used so-called Standard Automobile Policy, but is a policy new to the industry and known as the Family Automobile Liability Policy; that this policy has revolutionized the extent of liability coverages and that the courts must not fall into the trap of applying the limited concepts of liability coverage used in the Standard Automobile Policy; that the purpose of the new policy is to secure a higher type of risk and give a broader type of coverage.

Respondent's contention is that under the terms of the policy it was not the intention of the parties that coverage be extended to the 1955 Nash automobile, it not having been specifically described in the policy but was an owned car of the insured at the time the policy was issued.

Under points and authorities appellant complains of error of the trial court in finding for respondent that appellant was not entitled to protection as an insured person under the policy for the following reasons:

1. That the specific provisions of the family automobile policy in issue disclose coverage was provided to appellant under the agreed facts.

2. That if the provisions of the policy are ambiguous, such ambiguity must be resolved by adopting an interpretation most favorable to the insured, which will afford the greatest scope of protection.

3. That it was the intention of respondent to provide liability insurance for the automobile in question: Otherwise, the said automobile would have been specifically excluded.

4. It is contended that the automobile which appellant was operating was an owned automobile when respondent's policy was issued and respondent may not rely on interpretation of 'newly acquired automobiles' clause of Standard Policy.

Appellate courts review cases tried upon the facts without a jury as in suits of an equitable nature. Section 510.310 subd. 4 RSMo 1949, V.A.M.S.

The instant cases were submitted to the trial court on agreed statements of facts. The deference usually accorded the determination of a factual issue by the trial court because of its better position to judge of the credibility of witnesses is not applicable. Giokaris v. Kincaid, Mo.Sup., 331 S.W.2d 633, 635; Pitts v. Garner, Mo.Sup., 321 S.W.2d 509, 514; Lukas v. Hays, Mo.Sup., 283 S.W.2d 561, 565.

The rules governing the construction of insurance policies are well settled. It was stated in Simpson v. American Automobile Ins. Co., Mo.App., 327 S.W.2d 519, 526, that:

"'* * * The policy is a contract. Plain and unambiguous language must be given its plain meaning. The contract should be construed as a whole; but, in so far as open to different constructions, that most favorable to the insured must be adopted. State ex rel. Security Mutual Life Ins. Co. v. Allen, 305 Mo. 607, 614, et seq., 267 S.W. 379, 381, 382. * * *"'

In construing any contract it is our duty to ascertain and give effect to the intention of the parties. We should not so construe it as to give a meaning that either extends or restricts the coverage beyond that actually provided. Haynes v. Linder, Mo.App., 323 S.W.2d 505, 509[3-4].

In Aetna Life Insurance Co. of Hartford, v. Durwood, Mo.Sup., 278 S.W.2d 782, 786[2-3], the court stated:

'In approaching this task, we deem it advisable to keep before us certain established rules that may be applicable. 'In the construction of the policy, the rules to be followed are well settled. The policy is a contract. Plain and unambiguous language must be given its plain meaning. The contract should be construed as a whole; but, in so far as open to different constructions, that most favorable to the insured must be adopted. State ex rel. Security Mutual Life Ins. Co. v. Allen, 305 Mo. 607, 614 et seq., 267 S.W. 379, 381, 382. However, as said in 14 R.C.L., Sec. 103, p. 931, the rule 'does not authorize a perversion of language, or the exercise of inventive powers for the purpose of creating an ambiguity where none exists.''' Hall v. Weston, Mo.Sup., 323 S.W.2d 673, 675; Pierce v. Business Men's Assurance Co. of America, Mo.Sup., 333 S.W.2d 97, 100[2-4]; Varble v. Stanley, Mo.App., 306 S.W.2d 662.

To support his first contention appellant relies upon the following provisions of the policy, in evidence as exhibit (A):

Under 'Part I--Liability----

'Coverage A--Bodily Injury Liability; Coverage B--Property Damage Liability

'To pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of:

'A. bodily injury, sickness or disease, including death resulting therefrom, hereinafter called 'bodily injury', sustained by any person;

'B. injury to or destruction of property, including loss of use thereof, hereinafter called 'property damage'; arising out of the ownership, maintenance or use of the owned automobile or any non-owned automobile, and the company shall defend any suit alleging such bodily injury or property damage and seeking damages which are payable under the terms of this policy, even if any of the allegations of the suit are groundless, false or fraudulent; but the company may make such investigation and settlement of any claim or suit as it deems expedient. * * *

'Persons Insured

'The following are insureds under Part I:

'(a) with respect to the owned automobile,

'(1) the named insured and any resident of the same household,

'(2) any other person using such automobile, provided the actual use thereof is with the permission of the named...