*1 M- M- O- Employers W. Edmund Cowell Corporation, Garn of Daniel Pupillo, Appellant. (2d) ishee S. W. 705. Two,
Division December 1930.
MO *2 Hugo Jr., appellant.
Taylor, Monnig, & Willson {Jhasnoff Eugene Stahl, and James J. Arthur Andrews O’Eonohoe for re- spondent.
1106‘ *4 COOLEY, garnishment plain- proceeding C. This is a in which $7,998.33 against garnishee, tiff recovered for Em- Indemnity ployers Corporation, from which appealed. the latter February, 1917, In Dallas, the Western Texas, Phpillo indemnity issued to Daniel an automobile insurance policy insuring period year for a of one loss reason injury liability personal through on account of done to others ownership and use a certain Ford automobile truck described being person for amount one limited $5,000. Pupillo injured struck and with his truck. Plain- sued, 1918, judgment against tiff in June, recovered for injuries. $7500 on account of said That was revived 1927, whereupon present defendant, was out and execution sued which had assumed taken over the assets and the liabilities garnishee. Company, summoned as Plain- garnishee interrogatories, tiff filed which the answered under oath. garnishee’s answer, Plaintiff then filed a and to such denial garnishee reply, provided denial Section filed Revised proceeding Statutes 1919. the issues to be tried this Since presented by garnishee’s and the there- denial interrogatories (Section 3864, supra) further need not note the we garnishee’s and the answer thereto. plaintiff’s. his long, especially pleadings on both sides are pleads facts, upon which he relies re-
denial he in extenso the pleads insurance covery. Pupillo of He issuance Company; policy was in force while said while injured by being he truck therein described struck coverage of the operated within the same was City policy; Court of the brought in the Circuit he suit injuries recovered sustained and St. Louis recover *5 judg- resulting the suit and $7500 for the and complied fully described; being insured ment appeal part; that no policy on his provisions performed all of the- judgment; the of judgment; from the revivor was taken the $5,000 for of .liable thereby became Indemnity Company Western injuries to for policy amount judgment, the which was the person; Indemnity when his said one suit was filed Western Pnpillo, agreed by assumed the thereof for as i't Company filing Pnpillo policy do, continuing for in de- the answer and the to wrongfully when trial, until the without shortly fense before defense; Pupillo 1921, withdrew from March, notice the that about to contract, in garnishee, Eknployers Indemnity Corporation, by the Indemnity every of of kind of Western consideration all assets the liability including the Company, latter, all liabilities the assumed of Judgment Pupillo. policy by issued latter under the from prayed $5,000, plus for the thereon date of rendition interest Pupillo, plus in costs of that of suit suit. by Western said denial the issued A19429, Company Pupillo policy No. “which is as referred to A’ made filed, is marked ‘Exhibit hereof herewith herein,” alleged: if much forth and it fully so as set by in policy, consideration of of said terms premiums in stated said n amongst agreed, things, other Dallas, promised and Texas, of following: unconditionally Pupillo against
“(1) indemnify Daniel loss To liability imposed Pupillo law Daniel for reason of the damages injuries bodily accidentally of or al- on suffered account by any leged pet- in suffered while force to have been said of ownership, maintenance or use persons son or reason of built, power, year 1917, gasoline motor number Ford truck 5 of described item number truck is enumerated and which said while forming part of statements, of the schedule purposes private pleasure delivery within limits used Canada; liability In- of Western of United States or bodily resulting in in- Texas, from loss demnity Company Dallas, of person five is limited juries to or the death one subject limit thereon, and to the same dollars, and thousand interest liability person, total for each bodily resulting any loss one accident Dallas, Texas, person is limited of more than one to ten
injuries death persons injured. number regardless of the dollars, thousand “ Pupillo any of Daniel name and on behalf (2) To defend brought against Pupillo Daniel groundless, recover if suits, even injuries person persons by bodily damages account above or use automobile ownership, maintenance reason of the described. aforesaid, irrespective limits “(3) pay, . To any legal' proceeding de- against Daniel all costs taxed accruing entry after all interest company, fended
1109 part upon thereof, as shall judgment sucli be in excess of said liability. Indemnity Company
“(4) Western reserves to settle prohibits suit, voluntarily any Pupillo claim or and Daniel from any assuming liability, interfering negotiations legal proceed- in ings by Indemnity Company Dallas, Texas, conducted Western of any claim; prohibits too, Daniel from of and account any expense settling any incurring except other claim at his own cost and with the written consent of Western previously given.” Dallas, Texas,
of garnishee’s reply pertinent of the to the issues on this
appeal follows: Employers Indemnity garnishee Corporation,
“Comes now here- by in, court, and leave of to' denial of allegation every garnishee’s answer, denies each said denial contained. replying, garnishee states by “Further the terms of Indemnity agreed plaintiff’s denial, Company
mentioned- in Western only indemnify against named by assured therein loss reason imposed liability by damages law assured on ac- bodily injuries by ownership, count of reason of maintenance policy; use of the automobile mentioned said that said indemnity against liability imposed law, by of only against by liability imposed by Said but loss reason of the law. against provision contains a no action shall lie further agree- any Company to recover of under brought by contained, ments therein assured therein men- unless expended personally money actually by tioned to recover imposed by process liability satisfaction of claim or of law re- due sulting injuries actually by ownership, from reason of the caused maintenance and mentioned in use of the automobile judgment shall action after a no such lie until event against paid a court been of last resort the assured shall have satisfied. replying, judgment garnishee
“Further mentioned states that the Pupillo plaintiff’s denial, plaintiff against Daniel recovered Missouri, City Louis, in the Court of has not Circuit St. satisfied,
paid (thereof?) nor reason thereon no policy. exists under the terms garnishee replying, “Further states that Circuit Court City, no Louis, Missouri, St. not a and that resort last by plaintiff appeal recovered taken Missouri; Pupillo City Louis, Daniel St. Court Circuit plain- in favor there is no Daniel provided resort, last under the terms a court of tiff policy. policy provided when- that said
“Garnishee further states men- requested assured ever *7 securing effecting settlements, informa- aid in tioned therein shall prosecuting ap- witnesses and evidence, and the attendance of tion Indemnity Company peals to Western and shall at all times render power. co-operation Garnishee assistance within assured’s all and the Ptopillo policy in breached terms said that that Daniel the states of give Company all the informa- Indemnity failed Western he to plaintiff’s in concerning mentioned tion and evidence the accident knowledge In- his render to Western denial within and failed to co-operation demnity Company assistance with reference all and represent contrary did to- power, within but the thereto his respect- Indemnity set facts Company a false and untrue of Western ing Pupillo represented in said Daniel this, said accident the automobile mentioned in said the time of said accident at that by anybody in his policy was driven him behalf and contrary knowledge consent, automobile, with but on the said his and being operated by accident, at was stolen and was the time of said just Pupillo; prior person the said Daniel that some unknown to Pupillo, plaintiff of said Daniel said the trial cause Indemnity Company Pupillo at Daniel informed Western that the he, Pupillo, operating of Daniel the time said accident the said therein; the breach automobile that reason said involved of insurance, as no existed virtue policy aforesaid, Indemnity Company withdrew from the policy, and said Western de- Pupillo, Daniel and that said Western In- fense of said suit demnity Company aforesaid, solely did withdrawing, so because Daniel that and said breach on the withdrawing Indemnity Company none said Western waived Indemnity rights Company policy. Said Western its under said Pupillo of withdrawal as aforesaid in time notified said Daniel its represent Pupillo to secure other counsel to the said Daniel (Italics ours.) at trial cause.” of said garnishee’s reply in which he filed a re-asserted Plaintiff agreed its contract that against Pupillo brought and reserved the suit any to defend settling case; Pupillo from prohibited defense and to control the having un- continue the defense after company refused to appeal judgment, and and refused to dertaken it had made false statement also denied furnish it all assistance within his Company or failed to his case'. in connection power eyidence nearly documentary. all Tbe Plaintiff introduced the proceedings resulting judg- record of the the circuit court in the including judgment pleadings case; and ment, pro- reviving ceedings judgment; question; con- garnishee between 'Western whereby tract latter took over the assets assumed the liabilities of the formally appeal former. It was admitted that no was taken from the against Pupillo paid. had not been addition, Pupillo was called as a witness and testified was issued him, that the truck therein described was his and only owned, truck he then but when asked if that plaintiff, was the struck said he truck did not remember strik- ing plaintiff. He was not cross-examined. eyidence garnishee requested
At the close of an instruc- directing favor, tion which refused, verdict its and the garnishee declining demurrer, stood to introduce evidence. plaintiff’s request The court then at jury directed the return *8 $5,000 verdict for per interest thereon at six cent per (the 7, annum from 1918 June date of the against Pupillo), done, which aggregate was amount of the verdict $7998.33.
Appellant assigns (1) things, viz., error three that prima-facie insuring failed to make a case under the clause of the policy, because his evidence did not show “a risk and cause of loss (2) against;” directing insured that the court’s a action verdict for plaintiff erroneously deprived appellant jury to have its pass upon (3) evidence; admitting oral erred in court policy by Western evidence issued to proof persons without execution pur- “the thereof sign porting same,” authority to their act company. assignment of third error cannot be sustained. Appellant’s
I. objection There was no introduction in evi- P°licy ground °n the ^enee that it was not been shown to have executed and issued garnishee’s Company, and Western is pleading it amounts an admission that had been executed company. sued policy only objection offered in evidence the of-
When objection properly fered was that it had not been identified. That urged successfully urged because the is not here and could not be policy sufficiently plaintiff’s as the one referred to identified objection, if that justify its as even denial admission pleading, appellant’s as we think it in had been fact admitted 1112 objection properly identified policy was. was not
effect The equivalent objection urged now that its execution is not to the appellant’s pleading amounts Besides, stated, been shown. reply appellant pleads an admission its execution. “by denial the terms of the mentioned agreed,” etc.; that “said is ’’ ’’ ‘‘ provision, etc.; policy further contains a indemnity, (see reply policy occur etc. Other similar references to the referring reply quoted), above all to the portions italicized which Indemnity Company, operative as an contract of the assigning executed, reasons be if it had not it could-not suggest it it, none which why under there was no duly issued.' executed and had not been general begins with a denial. But “the It true that the is is general raise an issue where followed plea denial does not it Delmar inf. v. special and avoidance.” ex plea of confession [State 185, 92 S. W. cited. See also Jockey 65, Mo. and cases Club, 34, 200 (Mo.), 1; Howey Howey 352, 245 149 S. W. v. Hanley, Mo. Holt v. (Mo. (2d) 16 Moynihan S. W. 451; App.), 450, 240 S. W. Ornellas v. Jockey supra, Club, Delmar inf. v. In State ex 1007.] 474, Mining 83 App. Mo. l. c. Co., v. quotes approvingly from Price follows: by a general is overcome denial pleading that a a rule of “It attempted avoidance. v. Rail subsequent [McCord .confession pleading is that where a a further rule road, App. Mo. It is 95.] interpretation strongly in its ambiguous be taken most clearly in answer are pleaded-by the defenses pleader. court below out been stricken and should have consistent 142) ; Trigg, 37 Mo. Adams v. Donnelly, (Darrett 38 Mo. *9 objection must we now stand without they allowed to as were but subsequent by of that the as overcome regard first, denial, the the and avoidance.” confession n appellant’s cases, in the above cited announced Under the rule- policy. admitting execution of the as the reply must be construed of the facts to an admission reply amounts the II. For like reasons were assignment error not in its 'first appellant claims which plain that upon the contention assignment based proved. That un prima-facie case to make a tiff “failed Policy clsrase of ^ the der tending show to evidence introduce failed to was no (a) against,” because there insured of loss and cause a risk employment in not the injured person the that evidence (b) insured automo- accident, or the time of the insured at (c) in being purposes defined or bile was used in the insured automobile was the same automobile involved alleged fully plaintiff’s are in denial and accident. Those facts appellant’s reply begins, standing which general denial with regard respect, join But this as alone, issue thereon. would general policy, we think the denial is waived to the execution of the plea that it special or follows and which is in- overcome consistent therewith. insuring policy pleaded by as plaintiff clause of the does not injuries persons in employ
relieve insurer from pleaded as policy applies of the insured. As written it “by person injuries persons.” suffered or There was an en- policy when which provided dorsement attached to the issued it ‘by any person persons’ appearing that “the words in Section one (1) insuring hereby clause of this policy amended to read ” any person employed ‘by persons insured,’ virtue insuring appellant now of which clause insists the must be construed though originally exception contained said the bur- and that prove den rested of his he was case employed by- assured and was therefore within the class to which the policy applied. reply
In appellant its refers to mentioned in and, above, denial as we have held admits effect the execution and policy. by plaintiff pleaded issuance As does not exception urged contain the by appellant. now Ap- amendment says pellant nothing amendment, such any- about nor indicating thing deny an intention correctly pleaded insuring proceeds allege clause. It then affirmative reasons because which non-liability, viz., it asserts judg- against Pupillo ment obtained paid by him, had not been that it was not a resort, Pupillo' a court of last and that had violated policy by falsely claiming the terms at first that the “auto- policy” mobile mentioned in said was not driven him at the alleges time of “said accident.” It further that Western having Company, after assumed the the suit solely alleged withdrew therefrom because breach plea by Pupillo. appellant’s There is further reply, viz., plea adjiidhcata, of res which we have not set out because not urged apparently here and plea- appellant abandoned. al- leges after was obtained him, Pupillo sued recover on the and that pleaded company as its defense the alleged above mentioned breach *10 policy by Pupillo, that the had not paid been that it was a of a last not resort —the same de- garnishee. now fenses asserted the supra, Hanley,
A pleading similar to this was considered in Holt plain by a for There the action widow admeasurement of dower. an marriage alleged death, he her to Holt and his that petition tiff ’s land, general followed etc. The was a denial was seized the answer plea setting forth certain that “on account the a facts and plaintiff court said aforesaid” the had no dower interest. The facts 359) : (245 Mo. c. l. necessarily marriage of admits the
“We think that this answer petition, af- her as stated husband, and death of squarely upon pleaded placing matter firmatively the defense new in avoidance.” case, in this principle applicable appellant’s pleading is
That prove an em- that he was'not only not as failure to proof to the further contention ployee insured, that but purpose for a within used did not show the automobile that it was provisions that the automobile therein or subject Paragraph on this See also cases cited described. other I hereof. proof unnecessary it to make
For another reason was reply admits Appellant’s of such facts. that charge of the suit Company assumed of the defense policy. from It later withdrew the defense provided in assigns reason for such It as the sole refused further to defend. by denying at Pupillo had violated the contract withdrawal accident, operating car at time of the first had that he been truth, viz., that although insured the later and before trial told he alleged operating that such conduct con- he had been it. It fact all informa- Pupillo’s furnish insurer a failure stituted knowledge concerning and to render the accident tion within his contract on his was breach co-operation assistance, hence request upon of in- policy provides that pleaded It part. co- render information and furnish such the assured shall surer request pleaded such had But is not it operation and assistance. any forfeiture made, under the terms or that comply the insured failure of kind shall follow any penalty insurer from the will release failure or that such provision, provides re- liability. duty defend mentioned, as to things is silent but do the quest assured shall plead claim that Appellant did to do. failure so' of his effect trial” of informa- “just before withholding alleged until making driving prevented from it car Pupillo tion that made, it could have might have nor otherwise it pleaded It desired. postponement of the trial obtained secure time Pupillo of its withdrawal it notified
1115 represent him at the If counsel to trial. that be true, other did it not preparation time itself whatever still have to make could be made by Pupillo’s presented situation revelation facts, meet the of the though that was belated? Pupillo even revelation somewhat That guilty of conduct thus attributed to him not was a conceded allegations appellant’s reply expressly Those fact. denied appellant’s reply him plaintiff appellant in a filed alleged prove facts, proving no evidence the burden of offered allegations upon appellant’s reply rested it. But had those which proved justifica- or they admitted we would not been think constitute appellant’s from for withdrawal defense. See Ornellas v. tion might Moynihan, supra. need ¥e not consider what have been the alleged misrepresentation respect to appellant’s of the effect proceed or duty to with the defense withdraw therefrom alleged misrepresentation if had been and shown that the disabled it if in- prejudiced appellant making the correct given under in- when had shown of facts which the formation state alleged liable. No in this such facts are surer would have case. pleadings therefore that
It stands admitted Western In suit demnity assumed the defense of the preventing conducting policy, pursuant to the terms unjustified making any settlement. Its with own defense his put ground was not in from the defense that the drawal coverage Having policy. assumed jury not within the thus against Pupillo, we Com charge the case think Western estopped injury claim right or itself to pany waived the coverage appellant within wherefore stand policy, was not respect. case in Fairbanks ing shoes is in no better See in its Co., App. 154 133 W. Canning Guaranty 327, & Acc. Mo. S. Co. v. question at in which the is discussed decision
664, a well-reasoned Co., Rieger Guar. & Acc. v. London length authorities are cited: cited; 215 W. cases App. 184, 920, S. Ornellas 202 Mo. supra.
Moynihan, necessary for stated was not For the reasons above it one insured automobile involved offer evidence purposes authorized accident, it was used employ assured, injured was when proof rested as to those matters. regardless of where the burden properly overruled. Appellant’s demurrer was a ver remaining assignment by directing III. Appellant’s fight to erroneously appellant denied plain tiff tlie
dict credibility of the oral jury pass upon the have the though was. uncontradicted short and testimony, con would most serious contention demand *12 out necessary to make facts if there were sideration only by parol shown evidence was existence of which case the correctly construed But if we have any disputed evidence. facts all es facts in this ease. The no such pleadings there are and, as we have indisputable documentary evidence tablished pleadings, and therefore there in the held, admissions above jury. court, It was for the to the submitted no issue of fact to be contracts. pleadings and jury, not construe the [Wendorff (2d) 1 W. Plaintiff 363, S. Co., 318 Mo. State Life Ins. 99.] Mo. such testi shown, but evidence, as above parol introduce some did were, in ef have held facts which we merely prove mony tended to proof, no needed pleadings therefore fect, admitted point is therefore ruled disregarded. This testimony may such be against appellant. Appellant IV. has apparently abandoned all of defenses
presented by in the trial court. The to non- contentions as grounds Pupillo’s alleged breach judgment
of contract was not a paid court of resort and that it had not last urged court, are not in this any assignment briefed nor is nor there predicated rulings and'judgment of error The thereon. trial court’s grounds assailed on those need not here we discuss them. points urged for reversal The we find to be merit. without party the circuit court for the Davis, G., should be affirmed. It is ordered. concurs. -The foregoingopinion by Cooley, C., adopted PERCURIAM: opinion judges concur, except Blair,
as the court. All of P. J., sitting.