Cаrolyn BEARD, Plaintiff-Appellant, v. Charles JACKSON and Transit Casualty Company, Defendants-Respondents.
No. 34688.
Missouri Court of Appeals, St. Louis District.
Oct. 30, 1973.
Motion for Rehearing or Transfer Denied Dec. 7, 1973.
Additionally, the information fails to come within the second or optional standard as noted in the decisions above cited by describing the acts complained of in the language of the ordinance. It is not stated that the alleged language was “calculated to prоvoke a breach of the peace“—an essential element of the offense as above noted.
Respondent seeks to avoid the necessity for the charge to contain these words by taking the position that, since the ordinance employs а disjunctive connection between the various acts set forth, the words “calculated to provoke a breach of the peace” apply only to the first (or language) clause. It states that the information contains a valid charge under other clauses of the ordinance where such words are not essential.
Assuming, without deciding, that this position is valid, the basic faults of the information are not cured thereby. We believe it is evident that the attempted charge relates to the first (or language) clause of the ordinanсe. While the information employs the term “loud, profane language” rather than the ordinance term “unseemly, profane or obscene language” this is a distinction without a difference. Further, we have studiously examined and reexamined the ordinance in an unsuccessful attempt to find another portion thereof into which this charge will comfortably or logically fit. Even if respondent‘s interpretation of the information was accepted, the information then necessarily becomes so vague and speculative as to offend the requirement that it fairly and accurately apprises the appellant of the nature of the charge against him. St. Louis v. Eskridge, 486 S.W.2d 648, 651 (Mo.App.1972).
We have carefully reviewed the decisions cited in respondent‘s brief and we do not find them in point as to the crucial points decisive оf this appeal.
For the reasons herein stated, the judgment below is reversed.
All concur.
Deeba, DeStefano, Sauter & Herd, James B. Herd, St. Louis, for plaintiff-appellant.
MCMILLIAN, Judge.
This is an appeal by plaintiff, Carolyn Beard, from a judgment entered by the court upon a jury verdict in favor of defendants, Charles Jackson and Transit Casualty Company, hereinafter referred to as Transit. Plaintiff, a passenger in an automobile operated by her husband, Richard Beard, the insured, filed suit against defendant Charles Jackson, allegedly an uninsured motorist, as a result of a collision between the car in which she was riding and the automobile operated by defendant. When defendant Jackson failed to file any responsive pleadings, the trial court granted a default and inquiry hearing. After the hearing on the default and inquiry, but prior to entry of judgment thereon, Transit filed (1) a motion to set aside the default and inquiry, (2) a motion to intervene, and (3) аn intervening answer. After plaintiff unsuccessfully sought a writ of prohibition, the trial court sustained Transit‘s motions. The principal issues presented are (1) whether Transit had a right to intervene, (2) if so, whether it was bound by the issues as made up by plaintiff and defendant Jackson, (3) whether the facts as alleged by plaintiff were judicially admitted by defendant Jackson‘s failure to file an answer, and (4) whether the court erred in giving certain instructions. We find that Transit had the right to intervene, to file an answer that denied allegation of plaintiff‘s petition, and that no error was committed in the giving of instructions; therefore, we affirm.
Transit filed its motion to intervene July 7, 1970, pursuant to
Plaintiff argues that Transit failed to establish its right to intervene because it neither plead thаt defendant Jackson was uninsured nor did it unequivocally acknowledge that it would be bound by the judgment. Transit‘s motion set forth that it had a policy of insurance in force and effect containing uninsured motorist protection for the owner Richard Beard, the operator; and the passenger, his wife the plaintiff, in Richard Beard‘s automobile. And that plaintiff claimed to have been a passenger in said automobile and claimed to have been injured through the negligence of defendant Jackson, claimed by plaintiff to have been uninsured. The answer further alleged that defendant Jackson had failed to file responsive pleadings, had suffered an interlocutory default, and had failed to appear for the default hearing. Continuing on was an allegation that “. . . ‘if, as plaintiff claims, defendant is uninsured, then intervenor (Trаnsit) will or may be bound’ by the judgment . . . herein on the issues of liability, injury, or damages, and that its interest are inadequately represented by defendant herein.”
Our reading of the Craig case finds nothing contained therein posits that the uninsured motorist carrier must admit liability in the contract case in order to intervene in the liability and damage case. Moreover, Transit complied with all the provisions of our then
In support of her position, plaintiff also cites Continental Ins. Co. v. Smith, 115 Ga.App. 667, 155 S.E.2d 713 (1967), wherein intervention was denied because the right of intervention is necessarily predicated upon the insurer‘s obligation to pay plaintiff the amount of the judgment rendered. Hence, in order to intervene the uninsured motorist carrier was required to first stipulate its liability to its insured upon an adverse decision in the tort case. Whatever the merits of the Continental Insurance Co. case are, it was decided under common-law rules, which allow a non-party to intervene only if he set up a right of such a direct and immediate character created by the claim in the action that he would gain or lose by the judgment. Our intervention practiсe is established not by common-law rules but by our Supreme Court Rules which speak in terms of “. . . ‘is or may be bound’ by the judgment . . .” In any event Doe v. Moss, 120 Ga.App. 762, 172 S.E.2d 321 (Ga.App.1969) after an amendment of the Georgia Code,
Wert v. Burke, 47 Ill.App.2d 453, 197 N.E.2d 717 (1964), also cited by plaintiff decided that an uninsured motorist insurer could intervene in a case by the insured against the tort-feasor. But nothing said in the Wert case compels a finding that intervention was improperly granted in the instant case. It is inconsistent to state, as does the court in Wert that the intervenor must take the case with the issues as joined by the plaintiff insured and the defendant tort-feasor, and yet to say that the court may determine the disрuted question of the defendant tort-feasor‘s lack of
Having established that Transit had the right to intervene, the next question is what may Transit do to protect its interests which were previously unprotected by a defaulting party—a judgment against whom is binding by collateral estoppel against Transit in a subsequent actiоn as to issues determined in the first case. Plaintiff argues that Transit was improperly allowed to raise defenses which defendant Jackson had not raised. This argument mistakes the basic scope of intervention. While it is true that an intervenor must accept the action pending as he finds it at the time of intervention his rights thereafter are as broad as those of any other parties to the action. Having been permitted to become a party in order to better protect his interest, an intervenor is allowed to set up his own affirmative cause or defense appropriate to the case and his intervention.1
The court in the Craig case, supra, permitted the uninsured motorist carrier to intervene “. . . only to the extent of contesting the issues raised by Count I . . .” (Emphasis added.) For an intervenor effectively to contest the charge of negligence, it is evident that it should be permitted to raise all defenses to that charge—both affirmative and negative—which the defendant himself could have raised had he appeared. In City of St. Joseph v. Hankinson, 312 S.W.2d 4 (Mo. 1958), where a party was allowed to intervene as a member of the class оf persons named as defendants in an annexation proceeding, the court noted that the intervening party was “. . . entitled to raise any legitimate defenses which came within the general scope of the original suit, and which the original defendants might have raised . . .” Here, defendant Jackson filed no responsive pleadings; hence, Transit had the right to contest the issue of negligence in its intervening answer with all legitimate defenses within the general scope of the charge. To hold otherwise would permit Transit to intervene so that it may sit in court and watch plaintiff take a default from the vantage point of counsel table instead of from the back benches.
Finally, plaintiff complains that the court erred in the giving of Instructions Nos. 3 and 4. Instruction No. 3 was her own verdict director, while Instruction No. 4 was a direct converse of the sole issue of excessive speed submitted for recovery in Instruction No. 3. Also, Instruction No. 3 required the jury to find that defendant Jackson was the driver. Instruction No. 4 required the jury to make the same findings, and was a simple converse of Instruction No. 3. We find plaintiff‘s allеgation of error to be without merit. First, plaintiff may not predicate error on the giving of her own instruction. Blankenship v. Kansas City Terminal Ry. Co., 462 S.W.2d 650 (Mo.1971). Nor, secondly, may she complain of an instruction as erroneous where the proposition contained in it was but the conversе in expression of an instruction given for her. Baker v. J. W. McMurry Contracting Co., 282 Mo. 685, 223 S.W. 45 (1920) [10].
Accordingly, judgment affirmed.
SMITH, P. J., and CLEMENS, J., concur.
SMITH, Presiding Judge (concurring).
I concur in the opinion of the court but feel some additional comments concerning
We have held here that the insurance company has a right to intervene in this litigation pursuant to
It appears to me that the unique nature of this type litigation and the frequency with which it occurs would warrant an examination by the Supreme Court Rules Committee of procedures for this specific type of litigation. I see no reason why a rule cannot provide for combining the tort and contract causes of action for trial. Nor can I see any reason why the right of the insurance company to intervene in the underlying litigation cannot be conditioned upon its agreement to try liability, damаges and coverage in one lawsuit. The law must be and is flexible enough to accommodate the changes constantly occurring in society. When a unique and frequent type of litigation emerges we should develop procedures to efficiently deal with it. As to uninsured motorist litigation we have not as yet done so.
GERALD M. SMITH
PRESIDING JUDGE