*1 Roofing Morgan Company, a v. Maude S. Corder S. Corder J. Corpora Casualty Bituminous Defendant, Corporation, and 39657. 195 tion, Corporation, Appellant. Nos. (2d) 441. S. W. One, 10, June 1946. Division July
Rehearing Denied, 1946. *2 F. H. Bichart appellant. and Bruce Barnett for *3 Sweeney McCaffree, Myres William T. Edward Wm. J. B. respondents.
133, separate judg- HYDE, garnishments, P. on two J. Two against defendant, personal injuries ments for were consolidated judgment were together jury tried to a in Verdict and Circuit Court. has $21,652.41. plaintiffs jointly for the Garnishee for total sum of appealed. question public coverage herein the of the involved is liability insurance which defendant obtained frоm Garnishee. between, 66 injured Highway
Plaintiffs were in a collision on U. S. by H. their Elmer operated automobile and another motor vehicle judg- Dale, employee an obtained of defendant. Maude S. Corder by court against $10,000.00 ment which affirmed this defendant for (2d)W. Morgan Roofing 382, in v. 166 S. Company, Mo. Corder $3,832.75 which included judgment 455. S. for J. Corder obtained defend these damage to his automobile. Garnishee was asked cover ground but refused its did not suits on the damages by highway. for done a vehicle on a Liability Policy Garnishee issued Public No. 3116 to defendant its insurance, in “To April pоlicy provided 1935. for as follows: This Pay pay all sums which Assured shall become liable the bodily including resulting there imposed by injuries, law death during suffered, accidentally have been from, alleged or suffered any by person or Special in policy period defined Condition persons employed by upon premi within or not Assured while upon (or in the sidewalks or other Special ses described Condition immediately ways thereto), adjacent or while otherwise about during the progress caused of and Assured, work of the reason 4. . Special in . . of the business described Condition Also, respect not liable shall Provided driving by any draught animal bodily injuries . . . caused or by any person employed or vehicle, or owned or used Assured engaged maintenance or use of same else the Assured while 4 . . . upon premises Special Condition than described where "Special Conditions. complete "4. A trade or business description Assured’s con- or policy, places covered where such trade business ducted . . are as . follows:
"Description of where such the- Places *7 or or
Trade Trade Business Business by Policy covered is Conducted St., "(a) Roofing Joplin 623 —all Missоuri, including Joplin, kinds — yard employees. in the and elsewhere #5551 of Missouri.” State for liability be $5000.00 The was under this stated person one for no $10,000.00 and one accident. was for by This premium payroll definite term and audit. was to be fixed broker through Ludwig, was obtained W. E. an insurance City. F. policy through He C. procured testified that he Kansas Crist he Company and He represented who Garnishee. said procured policies other for C. F. Crist and Com- other clients from pany years during the and 1936. Defendant’s business building roofs on residences, public buildings, business and which was mainly done in southwest used Missouri. Defendant automobiles trucks to haul men and from their Joplin places materials where roofing being work was done. Defendant PW-.A. also bid on 40 or 50 contracts, and was awarded were and 20. Some of these between at Nevada, Marshall, City. had Chillicothe Jefferson P.W.A. following regulation concerning "Adequate Public insurance: Liability Property Damage Insurance such protect contractor and all his construction subcontractors from claims for personal for injury, death, property, may accidental and to which operаtions arise from contract, under his operations whether such by by any directly or anyone himself such sub-contractor or or indirectly employed by required either them.” It such $10,000.00 person insurance to cover for one and $20,000.00 for one accident. up
Defendant took Ludwig with Mr. compliance the matter of with requirements. these He obtained from Company certificates Crist and for each P.W.A. contract awarded to defendant to show com- such pliance. In began State of Missouri building program a for improvement of state institutions which pаrt was financed in P.W.A. funds. This was administered a Bi-Partisan Board all contracts made required this Board were ap- to have P.W.A. proval. Such contract two cottages' for custodial at the State School for Feeble Minded at-Marshall was let to Willems and Childers Company. Construction contract This was. called P.W.A. Docket No. roofing these the subcontractor 5131-L-2, and defendant was Ludwig copies of through Mr. thirteen cottages. procured following certificate: OF INSURANCE
“CERTIFICATE covering to'certify following policies described “This is that the Casualty Corpоration, stated, have been the Bituminous issued and are now force at this date. Roofing Morgan
“Name of Assured coverage “Description Complete of Work within Covered covering type mentioned, limits stated for the of insurance all of assured’s in connection with the assured’s contract on P.W.A. Docket No. 5131-L-2 ' “Place Where Work is Marshall, to be Done Missouri “Details of Policies in force: Compensation
“Workmen’s No. 21016 ...........................Expiration WC 4-29-37 Liability........(One “Public Person, $10,000) *8 PL ( No. 3116 Limits Expiration 4-29-37 (One Accident, $20,000) (cid:127) 5,000 4-29-37
PD “Contractors’ Protective
Liability ..............(One $......) Person * * No ( .........Limits Expiration..* (One Accident, $......)
“Dated day this 8th July, 1936. .Casualty Corporation.
“Bituminous “By F. Crist, C. Crist & F. Co. C. Jr.” Copiеs of this certificate were filed with the Missouri Bi- Partisan Board and with the P.W.A. approved copy and an was sent to the General necessary Contractor. This was defendant before could commence work job. on the Dale was defendant’s foreman on this work and, as we held in (350 Maude S. Corder case Mo. (2d S. W. )455) properly found to be in defendant’s service within scope employment his at the time of the collision. Plaintiffs correspondence introduced Company Crist con- cerning certificates jobs, on part in as follows: P.W.^-. April 14, 1936, C. F. Compаny by Crist and Morgan J. Stark to Roofing Company: requested
“As your in Ludwig, letter to Mr. enclosing we are here- with certificates of insurance. please Indemnity Also enclosed find Agreement, which we appreciate your would signing completing in triplicate, and returning your to us at earliest convenience.” April 16, 1936, Morgan Roofing Company by V. Welch F. C! to C. Crist and Company: attorney up with our agreement (indemnity) “We have taken this sign Ave in the event advises us interpretation and he for his P.W.A. on these whatsoever insurance agreement, we have no
this understanding and our intеrpretation jobs, with his so accordance agreement.” same, sign to we do not care Morgan to Stark April 28, 1936, F. J. C. Crist Roofing Company: In- Avith your April 16, 1936, connection
“Answering letter of us, if demnity you sign and return Agreement which we asked that you will find you have issued will check the certificates which we over limitations, pro- your job without that these certificates cover P.W.A. interpretation of any mean that the kind; visions of this we jobs P.W.A. is such certificates issued on U. S. Government on ac- original policy must be claims, whether covered or not of these knowledged by insuring сompany. not the intent only indemnity coverage job, to limit agreements to exclude on the terms, coA^erage provisions, and conditions in accordance with the policies. “Every policy requirements provisions which has certain by; type assured to the must abide and also there are limitations claim swept covered. These conditions are all aside 'the certificate jobs, which Aveissue on P. W. A. and the Government has even U. S. liability, job construed a certificate a P.W.A. cover automobile on ’’ liability. coverage inasmuch as was shown thereon for July 10, 1936, Company by W. E. C. J. Crist and J. Stark to Ludwig: recently yop.
“We have furnished to certificates of insurance containing policies connection with the above assured’s a clause read- ‘ ing Complete coverage type as follows: for the within limits stated mentioned, of insurance etc.’
“It is not the intent of our cover automobile *9 public liability or teams and inasmuch as the clause contained on this by interpreted providing certificate has been P.W.A. the authorities as coverage, necessary such it complete sign is that this assured and the indemnity agreement indemnity attached which form will serve anas Casualty to the Corporation Bituminous in the event that this assured operates awqy and teams motor vehicles from premises the where being performed is resulting work and claim from such presented payment. your up Please take this matter with as- agreement completed your sured and have this and returned to at us ” earliest convenience. July 21, 1936, Morgan Roofing Company V. Welch C. to C. F. Company: and Crist your July
“We have letter of 10 to Mr. W. Ludwig E. and Indem- nity Agreement blank which he forwarded to us. We have taken this agreement that us attorney, and he advises up our matter with difficulty. inbe Sign we would definite and that to same is not be definite Indemnity Agreement that would you “If oan write an take under glad to same you exclude, be just we would as to what advisement. pay to satisfactory arrangement for us
“It be a more would only you and jobs on P.W.A. additional for our work premium an au- that are laid down P.W.A. requirements under all cover us your insurance to cover.” they intend certificate of thorities as defendant’s made an audit of auditor of Garnishee an Thereafter 29, 1937. April On period April 29, 1936 payrolls for the May paid premium it a 4, 1937, defendant basis of this audit dated Bi-Partisan Board which Secretary State $1161.87. Engineer of the building and the Chief supervised program re- concerning public their insurance P.W.A. both testified quirements approval of the certificate on acceptance and their and the Marshall contract. for a directed verdict should
Garnishee contends that its motion says make a case claim- plaintiff been failed to have sustained. injuries on a ing policy that the cannot construed to cover be “prеmises” excludes highway (arguing that the use of the word only injuries Joplin at 623 Street this); that the could cover (invoking places of like character or at other of business of defendant only ejusdem generis); applied that the certificate rule of 5131-L-2, which it claims was' not contract on P.W.A. Docket No. occurred; trip identified with Dale’s on which the collision but a mere certificate not an instrument or contract of insurance was general contractor statement; that the certificate was addressed to if the anyone else; that even not intended for the benefit of was an insurance contract it would sub- certificate could be considered ject policy; and that the did to the conditions stated damage coverage in property provide not cover or excess of $5000.00 person. Garnishee further contends that there was no to one Company evidence that the certificate was executed C. F. Crist and anyone correspondence or that the above referred to was with authority Company F. even that F. represent C. Crist or C. authority Comрany had to execute the certificate for Gar- Crist nishee. orig
Considering these last contentions first we find that the countersigned inal C. F. as Gar Crist representative. authorized All the above letters were nishee’s stationery name, top appears written at the of which on Garnishee’s F. appears home office address and officers. Below this “C. Crist *10 City, Company, Agents, Building, General 220 Elmhurst Kansas and February February 26, 1937, 30, 1935, 28, 1936, and Mo.” March On documents Department Garnishee filed with Insurance Missouri Agent for tbe State of “Appointment entitled of General .Missouri” in F. Crist aрpointed each of it which was stated that Garnishee C. Company Agent and for State-' of Missouri within and General authority papers with and power process full all to receive The term against Superintendent. suits Garnishee served on the law, Agent” meaning “General a well insurance has understood agent authority countersign policies and an sign,- who has issue to Co., 228 general agent. is*a v. Ins. Mo. Gaines Berkshire Life [See Indemnity App. 319, (2d) 68 W. Assn. 905; S. Automobile Union v. (Mo. Reimann App.), (2d) 171 S. W. The above letters were 721.] usually to letters through received mail in answer United Statеs Ludwig Company. Moreover, mailed to C. F. Mr. testified Crist and during F. Company represented C. Crist and Garnishee this period- procured original and that he and certificate both the for the through Furthermore, Marshall contract them. after the end policy year, of the 1936-1937 Garnishee its auditor audit all sent to of payrolls defendant’s in connection all with other P.W.A. and accepted very contracts premium charged substantial which it on requisi the basis of this argues original audit. Garnishee that the tions, which Garnishee filed in 1935 with the Missouri Insurance De partment, appointing F. Crist, Sr., Crist, agents Jr., .C. and'C. F. “for the transaction its of authorized business insurance in the of State of ending Missouri” “for a was term March 1936”. How ever, anyone since no appointments during of else were filed 1936 or (and appointments Company of F. C. Crist as General Agents were filed) we think it is a reasonable from .inference all of the they above facts that continued to represent Garnishee. Certainly it would also be find reasonable to that the 1937 audit of acceptance defendant’s business and the premium on the basis thereof was a ratification оf their acts with reference snch business. We therefore, hold repudiate authority that Garnishee cannot C. F. covering Crist and to issue the certificate of insurance the Marshall contract.
We also hold that the certificate a part became of the insurance contract between plain Garnishee and defendant. It is- too for ar gument purpose liability its was to broaden defendant’s coverage insurance comply requirements. to make it with P.W.A. To do necessary so it was to double the amount of person one or for accident; necessary one and it was also to add in for property damage, surance which not in at all but which necessary the certificate up covered $5000.00. It was likewise for defendant’s insurance to damage's-which might cover all such arise operations from its contract, under and the did so cover certificate all of its connection Marshall contract.. testimony Secretary of Board, Building of-the State Bi-Partisan Engineer the Chief of the P.W.A. and of Mr. Childers
139 accepted General certificate firm, Contractor’s shows that this was required upon showing and relied as Garnishee’s contract for the coverage. Surely insurance a this, when after all and almost year after -vps issued, this certificate defendant’s busi- Garnishee audited ness, and premium public collected a on the basis of this other contracts, works it certificates permitted repudiate cannot be to the upon which such work was obtained. by printed policy seems obvious that the form used Gar prepared
nishee was not type scope for the de of business which fendant was conducting. printed portion This seems to have been operations drawn for single at a fixed location. The limitation con cerning injuries by caused used “upon premises vehicles the described Special in 4” very Condition could not applied be well to construc tion work at places throughout numerous state, places the because such change frequently would as projects completed some were and new ones were commenced. fact recognized writing This policy by describing in Special Condition 4 the “Placеs where such Trade or Business is namely: Conducted” possible language, broadest “623 Joplin St., Joplin, Missouri, and elsewhere in the Mis State of souri.” The least that could be said language is that this broad cre ates an ambiguity places as to what were meant covered, to be especially when considered in connection part insuring with the ‘‘ covering injuries clause caused reason during progress of and operations business in Special described 4”, Condition when a nec essary part operations of said transportation by was the mоtor vehicle of men and headquarters materials between defendant’s at Joplin Street and roofing jobs. its various
The rule of applied construction to in determining meaning ambiguities of such has been thus stated “Speaking Court: contracts, just insurance it is a and settled rule that their restric tive strongly terms shall be taken against most the insurer. The doc proferentem trine of contra strictly is applied with unaccommodating vigor and, said, ambiguities blandly are resolved in favor of the that, insured. if So the contract in open suit is constructions, to two one favorable to the not, insured and one if the insured has acted on construction, the favorable courts will take his view of contract, being always mindful that the principal obligation (the very life and soul) pay policy of a is to face when contingency or happens upon payment event which predicated.” is ex rel. [State Trimble, Mills Lumber v. Co. 327 Mo. (2d) S. W. This 355.] particularly applicable rule here in view of the issuance of the to make certificates defendant’s insurance comply with the P.W.A. requirements, stating insurance with reference tо the Marshall “covering all job; assured’s in connection with P.W.A. Docket assured’s contract on No. 5131-L-2.” & v. Accident Alabama, Bankson Supreme The Court of recently Casualty (2d) 398, Winterthur, Switzerland, 13 So. Co. an language construed similar in a cover injury hauling public highway caused a truck sand over ^ any project. construction The excluded claim caused “(c) any de- ownership, maintenance use of a vehicle of or scription any elsewhere, than draught driving or of or animal within *12 upon premises or in Declarations:”. The Declara- described City Statе, tions contained: “Item 3. The location Town or hereby Number, description operations with Street and and the of the (a) Buildings, Yards, insured in Premises are as follows: Location all constituting permanent Work Places locations: Insured’s Attalla, Alabama, and elsewhere in the State AlabamaThe com- of pany contended, herein, coverage as does Garnishee that “The any in particular place is not limited to one the named terri- tory, but, any an happening premises accident on the of one of jobs, in Attalla, Alabama, 'whether or elsewhere in the of would State policy; interpretation being covered the reasonable that the place actual job jobs premises of the construction or be the would all not of “Attalla or elsewhere in the of Alabama.” Never- State Supreme rejected theless the Alabama held Court this contention and that the in employees covered “the activities of the insured’s conducting operations transporting his in the instant case business through Attalla, Alabama, sand and elsewhere in the State of Ala- ’’ bama. To the same effect is our rel. Lum-' decision State ex Mills Trimble, holding ber v. supra, designation Co. that the of the insured’s ' anywhere injuries occurring location as La Plata covered in La Plata only happening yard. those within the insured’s lumber instead upon Casualty Employers Garnishee relies West Texas Stone v.Co. (Tex. App.), (2d) Inc., 178 W. Concessions, Co. S. 168 and Jacobs Fidelity Guaranty (Md.), (2d) However, v. U. S. & 28 Atl. Co. 858. policies in these cases contained broadening language no such as Doherty’s “and elsewhere in the State.” Garnishee case, also cites 294 363, 2 (2d) 186, Mass. N. E. which was a Compensation Workmen’s public highways “premises” case. It holds that are not of an em- him ployer compensation employees so as to make liable for of an independent operating, contractor thereon. We so hold under our Compensation Act. v. Quarries, Workmen’s Rutherford Tobin [See 1171, (2d) 918; 336 Mo. 82 W. State ex rel. v. Fulbright, S. Potashnick (2d) 350 Mo. 169 S. W. None of these are in point cases on 59.] herein, Jones, the construction of defendant’s nor is Brown v. merely 2017 which held Fed. Cas. No. the words “or elsewhere” anything description too indefinite tо add to the in that case. is a very matter, knowing different for Garnishee the nature of defend- business, ant’s to use words “and elsewhere in the State of Missouri” headquarters. We, in connection with location-of insured’s there- in connection with policy construed fore, that defendant’s hold defendant’s all of covers Marshall contract issued on the certificate the Avorkon in connection Avith Missouri operations in the State job. the col on which trip Joplin, further hold that Dale’s
We sufficiently part as a identified occurred, was plaintiffs lision Avith it not shown is that contention was operations. such Garnishee’s assured’s in connection injuries their resulted from in the certificate. described No. 5131-L-2 contract on P.W.A. Docket in evi introduced that number was However, original contract cottages at Marshall. the two custodial dence and it Avasa contract for inwas con trip Joplin job and his Dale the foreman on that finding for in the record There is no basis that work. nection with was foreman upon which Dale than that the Marshall contract otherwise We, there Docket No. 5131-L-2. any than P.W.A. w other рrop were for a directed verdict fore, motions hold that defendant’s erly overruled. the same 1 and in instructions alleges
Garnishee error directed verdict support of its motions for urged reasons in the alleges error Garnishee also accordingly these are overruled. *13 and F. Crist defendant C. correspondence between admission of that have held we Company. and are also overruled because These F. Crist and there was evidence to shoAv C. substantial to material letters were Agent, and the was Garnishee’s General indеmnity liability through an attempt to limit Garnishee’s show refusing claim of error overrule agreemént. We also Garnishee’s in other liability policies of admit in evidence forms of to wholly immaterial they think were companies because we surance of this case. under the circumstance judg the verdict and objects to the of
Garnishee also form $17,411.29 for plaintiffs for verdict for both ments. There Avas one against defendant and separate judgments amount of their the total damages verdict for interest; separate and a accrued also lQ°/0 6040, S. аttorney’s fees under Section R. ($1741.12) $2500.00 and of However, judgments for the total amount Ann. 1939, Mo. Stat. joint original cases. The of the two $21,625.41 entered each were because proper amount due-both was in the total plaintiffs verdict for garnishments agreed it that both beginning of the trial at the only joint judg case; but one and tried as one be consolidated should been entered on this verdict. ment should have recovery damages of and attor also contends
Garnishee only by authorized a holder ney’s 6040 is fees under Section must be sustained. Section 6040 policy. This contention a suit on any against any recovery “in action insurance com such authorizes any Only policy.” loss under a an amount of recover the pany policy, a under a so that plain loss of could suffer words insured against holder by policy a applicable only this statute make it to a suit 6010, R. S. (Sec. garnishment his insurer. Even our insurance statute collect party to 1939, Ann.), only for a provides Mo. Stat. a method reaching holder, judgment, against a obtained him a damages says nothing what about would due from the insurer. attorney’s only judgment and creditоr fees but authorizes the money satis- policy holder to the apply “to reach and the insurance judgment.” proceeded However, plaintiffs faction of the herein 8, general (Art. 5, Chap. under garnishment execution statutes. seq., Ann.) Certainly pro- 1939, See. et R. S. Mo. such Stat. ceedings only reaching applying are and purpose likewise for the their amount due on an insurance the satisfaction of judgment. Pleading 2, Practice Houts Missouri and Sec. 921.] [See We, therefore, damages plaintiffs hold that were not entitled to 10% attorney’s garnishment. feеs on plaintiffs’ judgment against for the total amount Garnishee judgments of their against defendant, together interest, with accrued affirmed; judgment attorney’s their for fees is 10% reversed. The cause judg- is remanded with directions to enter one ment for plaintiffs jointly in $17,411.29 the consolidated for case interest from March 1945 and costs. All concur. Rehearing.
On Motions parties rehearing. Both have filed motions for Garnishee’s re-argument questions motion is a decided opinion we rulings adhere to our as to all of them. Garnishee does further joint contend that judgment is not authorized because of Section (Sec. 97 of the Civil Ann.) Code 847.97 However, Mo. Stat. that sec only tion compulsory relates bearing consolidations has no on voluntary (Sec. consolidations. Section 16 of the Code 847.16 Mo. Ann.) voluntary Stat. joinder authorizes plaintiffs they when rights assert “arising out of the transaction, same occurrence, or series any question transactions or and if occurrences of law or fact commoh to all of them will arise in Therefore, plaintiffs the action”. *14 joined could have under this section had it they been in forсe when garnishments. Certainly commenced their good there is no reason why they could not afterwards agreement. consolidate them While separate judgments are authorized section, plaintiffs this make no complaint concerning joint' judgment this and Garnishee can way prejudiced by no it. Garnishee’s motion is overruled. (also asking Plaintiffs their motion banc) transfer to con 6009,. 1939, tend that Section R. S. Mo. Stat. Ann. makes persons, all injured public liability one insured under a policy, beneficiaries they policy of the that are so entitled to damagеs recover and attor ney’s 6040, fees under R. S. 1939, Section They Mo. Stat. Ann. even argue plaintiffs herein a under the suffered loss issued defendant, and, therefore, right They it. have the to recover on say that this is true because Section 6009 makes such insurance a indemnity against liability contract of and not a contract of in- demnity against Dodson, 196, loss. Yeats v. 345 Mo. [Citing (2d) 652; S. W. and Hocken v. Allstate Insurance Co., App. Mo. 991, (2d) argument 147 S. W. The trouble is that 182.] 6010, 1939, provides remedy Section B. Ann. S. Mo. Stat. which injured judgment for such an person injuries, who recovers a for his only him apply money authоrizes “to reach and the insurance to the judgment.” satisfaction required of the it is get judg- Thus that he against ment the insured and he is not authorized to sue the insurer policy. on the course,
Of plaintiffs point out, beneficiary a of a life insurance policy may damages attorneys’ recover 6040; fees under Section but this is payable because the is himto and he alone has the right only to sue on liability it. Section 6009 makes the of the in- company surance absolute there part when is on the of the insured, making instead dependent it become upon payment of the loss the insured; give but it does purport person injured not by the right insured the policy. to sue on the insured’s Section provides which remedy, gives only his him right in the nature of an equitable garnishment judgment to collect a against obtained clearly holder. That right stated to be the “to reach and apply the money”; insurance plain and it is too argument attorneys’ fees under Section 6040 part are not money insurance policy. due on an insurance Plaintiffs are after all only garnishors and, garnishor if a is to have an allowance of attor- neys’ fees, right given by such must be the Legislature; it cannot be granted by this Court.
Plaintiffs’ motion is overruled. All concur.