*1 Henry Casualty Linenschmidt, Appellant, v. Com Continental Corporation, (Garnishee) Respondent, Hofmann, L. A.
pany, (2d) Defendant . No 40093 . 204 S. W. 295. Two, July 14,
Division September Rehearing Overruled, for Motion or to to Banc Transfer Glover E. Dowell, Murry Andrew J. Reis and N. Edwards appellant. *2 White, Hartman F. Forclyce, Mayne, Williams & and W. Schwarz respondent. *3 BOHLING, garnishment C . This is a proceeding. Plain verdict, judgment against tiff had -a and garnishee, which the court, proceeding 1943, p. 387, under Laws 113,* See. later set aside garnishee. and judgment followed with a for the Plaintiff thereupon appealed. Henry
In principal action Linenschniidt plaintiff was and L. A. Hofmann Heath Guaranteed Heat Company, Inc., corporation a (hereinafter designated sometimes Heath Company), were defend- City ants.- sued in St. Louis sought Plaintiff damages for in- juries 22, October when sustained an operated automobile wagon with a Hofmann collided team driven plaintiff. The references * Section unless are.to R. S. otherwise indicated. Réfer (thus: General for Sec.) ences to the in Code Civil Proedure Code are found 1943, pp. appears which Laws Code in 3 Mo. R. S. A. with the 847.1, seq., 847.2 et sections numbered decimal number corresponding' appearing in Laws with the section number was an instruction case plaintiff’s the close of record shows at' Company, Heat Heath Guaranteed given to find in favor of defendant toas involuntary nonsuit Inc., plaintiff took an thereupon and that a returned jury aside. defendant, set the same said with leave to for Hofmann against defendant plaintiff and verdict in favor of as to involuntary nonsuit set aside $7,500. Plaintiff’s motion to had Plaintiff Company was overruled. defendant Heath Heath Com- against cause action against $7,500 but his Hofmann for tes- Hofmann proceeding pany garnishment was In this dismissed. automobile operating his injured he ivas plaintiff tified that when was must have proof that Company, Heath the stoker business of the ad- Thereafter, Hofmann was wanting in been the main action. ever payment was judgment.' No judged bankrupt, scheduling the judgment; made on effect automobile injury there was in plaintiff’s
At the time of a Casualty Company, policy CA-3,165,319 No. of the Continental against protecting corporation, the Heath issued to Proceedings were damages. liability bodily injuries property for against Hofmann $7,500 judgment plaintiff’s had in connection with being Casualty Company summoned resulted in which the Continental controversy is whether said garnishee; and the instant liability Hofmann under the covers the of defendant to. dis- developed points under the plaintiff. Additional facts will be cussed. reaching the merits. presents preliminary issue before May 16, garnishment
The trial resulted in verdict Casualty Company against in favor of the Continental costs, cetera; $12,006.75, embracing original judgment, et *4 day the garnishee pay on said the court ordered the to said sum into days 1567). May 24 registry (Sec. within On of court ten garnishee (proceeding 113, supra) under filed motion Code Sec. its judgment judgment aside the verdict and and for in ac- to set verdict, with motion a and a for cordance its for directed also motion July 8, garnishee having payment, trial. defaulted in new On judgment, upon oral plaintiff, motion of was “rendered for against $12,006.75 (Sec. conformity garnishee” 1579), for in said May July garnishee with the order 16. On 9 the refiled its motion judgment in for accordance its motion for a directed verdict July a and refiled its motion for new On 25 the trial. court sustained garnishee’s judgment in motion for accordance with its motion verdict, reopened judgment for a directed 113, supra, said under See. judgment entered, verdict and judg- vacated the theretofore rendered garnishee against in plaintiff, ment favor of the and overruled garnishee’s for new trial. motion Plaintiff’s motion to set asidé July court was 30, action of the overruled plaintiff appealed. 918 in jurisdiction its
Plaintiff the trial court exceeded contends (Laws 1943, thus Procedure proceeding. Our General for Civil Code p. seq.) judgments be entered as of provides et that are to 353 day ten to be filed within of the verdict and for new trial are motions days entry (Code 116); after and that a motion judgment Sec. judgment in accord judgment set aside a verdict and and enter days filed “within 10 ance with a motion for a directed verdict is to be '(Code points reception after the of a verdict” Sec. 113). day out the verdict judgment that the rendition of on the would premature garnishment contemplates our which procedure, money “to directing garnishee an order court may court, (Sec. the sheriff or into such time as court direct” at (Sec. 1566), upon and, upon compliance, discharged stand but 1567) up against (Sec. default, judgment garnishee” “enter 1579). Millinery Johnson, App. 325, 328, Walkeen v. Lewis Co. Mo. 130 109 (Mo. 847, 848; Panagos Cigar App.), S. W. W. General Co. 268 S. W. ; Malan, App. Gilbert 231 Mo. 100 S. 643, 469, 484(9), 645[3] garnishee’s argument 2d Plaintiff’s that motion 606, 616[16]. fpr May with its motion di accordance for a 24 rected verdict was ineffectual because the had not been July 8; entered at time and until that was not entered that refiling July timely motion of said was not because Code Sec. 9 required days to be reception it filed “within after the of a verdict”; is, days May within after ten 16.' relating particularly article of code to “Garnishments” (Ch. provision no specific respect- Art. Secs. contains 1560-1589) ing previous practice request peremptory our of a for a 'instruction law the old common “demurrer to the evidence” or for motions general trial, new which were covered the code the law. Wernicke, Consult Diamond Rubber Co. v. App. 166 Mo. 130, 148 W. S. Our new Sec. provides: Code [4, 5]. govern procedure” “This code .... shall ap- trial and pellate “in all proceedings courts suits and of a civil nature whether cognizable equity, at law or-in provided by cases unless otherwise just, construed speedy, law. It shall be to secure the inexpensive every determination of action.” Demurrers to the re- evidence and quests peremptory instructions are abolished a motion for a directed verdict substituted therefor Sec. Code and Code involved, provides, far Sec. here so as material: “Whenever at motion for a directed verdict made the close of all the evidence is granted reason denied or for is not court is deemed to have *5 jury subject submitted the action to a later determination of legal questions by the raised the motion. Within days after reception verdict, party the a who has moved for a directed ver- may judgment dict have the verdict move to entered thereon judgment have entered in and to set aside accordance with mo- his may be trial . ". . A motion for a new tion for a directed verdict in the may prayed for joined'with trial motion, or a new judg- may allow the If the court alternative. a verdict was returned judgment order a new may reopen the and either ment to stand or requested verdict had entry judgment the as if the trial direct or ” provision respect- being specific There no been directed. demurrers to the ing requests peremptory instructions or new garnishment procedure, our relating in article evidence the procedure former Code, 2, supplanted under the Civil Code Sec. applicable. made Code See. 113
Reading judgment and 1579 contem- together, Secs. judgment” against garnishee, “final plated See. 1579 is the being designated in and the “order’’ con- specifically so Sec. liability 1567, in templated See. the event facts establish part garnishee, plaintiff’s right, determines to recover and of the interlocutory operates preliminary judgment, judg- as a final discharge in garnishee to be entered the event the fail to ment obligations imposed. 3 Black. 397. The motion referred to in Comm. “any against Code 113 is the verdict and strikes Sec. directed at provided section; e., entered thereon” as in i. the inter- said locutory judgment contemplated judg- under Sec-.1567 and the final contemplated explicitly under ment Sec. Section states that court, sustaining a motion for a directed at verdict the close of all evidence, “is deemed to have submitted action to the jury subject legal questions to a later determination of-the raised garnishee diligence the motion.” The instant exercised due timely striking filed its motion at the verdict under Code Sec. embracing section, interlocutory under “judgment said entered day (consult 116) on the of the verdict” Sec. as well Code judgment against garnishee July final 8 under Sec. said carrying operating motion over and against judgment”; the “final judgment being “any each said phrase within the entered 113; e., thereon” of Sec. i. entered on the verdict. 'Sections 1579 and 1567 of the article on into Garnishments thus harmonize and fuse Assembly. (Consult new our Code as intended General Code respecting judgments 126 and Rule 3.24 purpose Sec. final for the appeal.) anof liability garnishee’s
Plaintiff contends the contract insurance L. A. covered Hofmann as an insured and may garnishee judgment against hold although under his Hofmann against he failed to make a submissible case the Heath principal law, action. The issue is one of determinable from all insurance, of the contract of which includes proper “Employers’ Non-ownerslSp Liability” and an attached en dorsement; each dated "December 1940. One of the conditions of *6 agreements between policy that it contained all was any agent. and
insured or embraced Page and policy designated 1 of “Declarations” is in) (the : portions being several filled “Items” italicized Inc., Company. Guaranty “Item 1. Heat Name of Insured Heath The occu- Louis, Corporation. St. is Missouri. The named Insured prin- pation of The automobile will the named Insured is Stokers. county state, unless and' cipally garaged town, used the above specified otherwise herein. . .
“Item . be used purposes 3. The is “Item for which the automobile are See Schedule Attached. (a) (b) owner
“Item . . . is the sole The named Insured (b) of the automobile: See Schedule Attached. ¿utomobile. Description spaces “Item 5. columnar are of [Here year model, to fill in with name and informa- trade other type- concerning automobile, except tion all left blank for See Schedule Attached. writing':] “Item 6. “Limits spaces, columnar are shown [Plere,
Liability” “Bodily Damage” Injury” “Property and the charged, totaling “Premium” ...” $96.74.] Page policy insuring of said agreement, provided, is the so far as material: Casualty (Herein
“The Company, Continental . . . called the Company) Hereby Agree Does the dec- named in part hereof, larations subject made a . . . to the limits of lia- bility, exclusions, policy: conditions other terms this “1. Coverage Bodily Injury Liability. pay To on behalf of A— the insured all obligated sums which insured shall become liability reason imposed upon him law dam- ages . , bodily . . because of injury , by any . . . sustained person persons, or arising caused out the owner- accident ship, or maintenance use of the automobile. “Coverage against property damage insurance [Provides B— like . . . conditions.] “III. Definition of Except ‘Insured.’ specifically where stated to contrary, unqualified word ‘insured’ wherever used includes only the named insured but person also using while the auto- any person mobile and organization legally responsible for the thereof, provided use the declared and actual use of the automobile ‘pleasure is and business’ ‘commercial,’ each herein, as defined provided further the actual use is permission with the of the named . insured. . .
“V. Newly Automatic Insurance for Acquired Automobiles. If the named insured who the is owner acquires OAvner- automobile automobile, ship of another such insurance as is afforded policy an auto- replaces . . if it . applies also to-such other-automobile '(cid:127) ... policy mobile described in this ap- This of Use. Period, Territory, Purposes “VI. Policy owned, main- ... only plies automobile while the *7 in the applicable thereto purposes and used for stated tained ’’ declarations. and, part, in read: Page policy 3 relates to “Conditions” of the Except More Automobiles. “T. Automobile Defined—Two or automobile wher- contrary, the word specifically where stated to the . . de- vehicle . in mean motor policy ever used shall ” scribed herein . . . provides person, that a Against Company” Condition “9. Action n may re- having policy provisions, within the obtained a and to the policy in the same manner cover “under the terms of this ” same extent insured. . . . as the endorsement, “Employers’ entitled policy To this was attached an 2” Liability and, 1 Class so far as ma- Non-ownership and —Class terial, provided: agreed policy “It as is afforded that such insurance Bodily Damage Liability applies Injury Liability Property and for automobiles, subject following pro- to respect- to non-owned visions:
“1. Definitions. The words ‘non-owned automobile’ wherever used any vehicle, in trailer this endorsement shall mean land motor or semi- part by, or-registered of, trailer not in in in the'name owned whole or or hired the named . insured ... “2. Application of Insurance. “ (a) applies only The insurance named to the insured.
“(b) only use, by any applies person The insurance other any than named private non-owned automobile passenger type in the business of the named insured in as stated ... declarations
“5. premium Premium. The advance for the insurance is based application in persons of the stated the schedule to in rates Class 1 and the number in persons to Class ‘‘Class 1. 1 following persons, provided Class consists of the their usual in duties business of the named insured include the use of types non-owned in 2 paragraph automobiles of the described hereof: “(a) (a) (b) employees, including embraced [Subdivisions officers, compensated for the use of automobiles agents and direct representatives . of the named . . insured.] employees “Class all . . not Class [Included 1.] pay company “The named insured-shall at the effective date premium advance stated the schedule. The earned premium computed shall policy period. the end of the at [Here provision subsequent adjustment follows a for t-he of the advanced additional premiums, earned the named insured
earned ... premiums.] covering per- numbered 6 and 7 to records relate [Paragraphs named sons within insured, to be maintained Class Class company furnishing and the copies of the same in- spection audit of the records company.] the schedule “8. Declaration. named declares that insured persons contains a all within the definition Class complete list of ” 1 . five individuals form, The “Schedule” in columnar showed with his Persons,” including Hofmann,” under “Class “L. A. “Headquarters” Rural shown as “St. Louis. Mo. & Missouri” “Bodily “$16.10” “Advance Premiums” In- “$3.00” jury” “Property Damage” liability, respectively; pre- a total mium of all $95.50 on “Class 1 Persons” and on all “Class $1.24 Persons.”
Insurance parties pro- contracts embrace two basic features: The *8 subject Company tected the Heath matter covered. The was only contracting sought protection against liability the It insured. in operation by of employees the non-owned automobiles its in its by using ordinary accomplished business. This was an form auto- policy attaching “Employers’ Non-ownership mobile an Lia- bility” endorsement thereto. clause, Agreement the omnibus policy, stresses III of .the argues that the personally insurance covered Hofmann because he.
was one of in employees the five named “Non-ownership” the en- using dorsement and the in was automobile the business of and with permission Company of the Heath at the time in- was jured. protection The omnibus clause afforded when others than the named insured used in policy; the automobile described that using . is, provided “while the automobile . . further the ac- tual permission use with the named insured.” The insur- applied, contemplated ance throughout policy proper, to “the automobile”; is, . “the word . automobile . mean shall ” (See motor vehicle . . described herein . Condition 1; 1, 4, 5, Insuring Agreements Declaration also Items V, YI, by by supra) whether used the named insured or others his permission. Although reference is twice made to “See schedule at- “Declarations,” in description tached” is no there auto- by mobile, Company by whether owned Heath or Hofmann, in the policy in proper or the endorsement. The “schedule” is restricted listing employees to the names within the endorsement, stat- ing headquarters premiums their and the advance Hof- incurred. operation classifying of an mann’s automobile within 2(b) Clause in the business of the the endorsement named insured within was regardless of ownership endorsement his of the The automobile. by automobiles, including omnibus clause covered owned their use Hofmann, as permission another with the the “named insured.” owner, legal had dominion over the automobile here involved and the right it. A to use automobile” within the endorsement “non-owned did not include “hired In circum- one the named insured.” these Hofmann, gave permission stances owner, person was the who Any attempted permission the use of automobile. Heath uttering would be a mere without of words of no effect permission. Whitney Hofmann’s Ind. 200 Iowa Employers’ Corp., ; Jersey N. W. Ins. Giroud v. New Mfrs. Cas. 239[5] Co., 106 N. L. J. Atl. If omnibus clause [2]. covered non-owned “Em- automobiles what occasion existed for the ployers’ Liability” Non-Ownership endorsement? endorsement was employees restricted to named using and restricted to automobiles business of but not owned the named a much more coverage limited policy than would have existed if proper under the non-owned policy automobiles were covered because the covered all automobiles within permission its when used with named insured whether in his business otherwise.
The “Non-ownership” strengthens endorsement this conclusion. provided It coverage policy not within necessary protect the named superior insured under the respondeat doctrine of when automobiles not it owned were used its business. Such endorse- prevail ments over provisions, although we find no conflict here. Consult Perpetual Moore Co., 98; Ins. 16 Mo. C. J. S.
1206, 1207. The throughout terms used the endorsement are exclusive of applying employees the insurance personally applying inclusive of only it employer, insured —the Company. Heath introductory Thus: The clause stated the in- surance “applies with respect to non-owned automobiles” and Clause *9 1 defined any “non-owned automobile” to “mean land motor vehicle . . . not by owned ... the named insured.” the This fixed subject matter, automobile, the 2(a) covered. Clause stated: “The applies only insurance to the named “scheduling” insured.” If an employee made him a named insured, purpose the of endorsement the would be defeated applied only as it by automobiles not owned the named insured. The insurance is Company. limited to the Heath ignores 2(a). the effect Clause 2(b) Clause restricted the of coverage of the only automobile specified its use in the business the by named insured specified the employees. 4, quoted Clause not ‘‘ above, states: The insurance shall be excess insurance over ” other . . . insurance available to the named insured using Those non-owned automobiles designated are employees, of- ficers, agents and representatives of the named 5 insured. Clause and Schedule. The named paid premium. insured the Clause Hofmann did premium. the not The named insured maintained
92-4 by called audits permitted inspections the records and the Throughout reference clauses 6 and 7 mentioned hereinbefore. the Company, as Heath insured, employer, to the named the per- not were employees insured and named in the endorsement sonally covered. 872, N. Y. 2d
Fertig Co., S. v. General Acc. F. & L. Ins. 466) on 2d is closer (affirmed opinion, 54 N. S. without Y. [11-13] citing conclusion, facts than other cited like cases and.reached Whitney cases, supra. and Giroud not liable ground upon garnishee
The last was considered which 389, 390, W. was that the Loughran Rea, 634, v. 212 Wis. 250 N. express terms, Liability” insurance, in “Employers’ Non-ownership liability any person did other than the named insured. not cover the differ, Although policies involved is said what 567, 5 N. Supply Co., App. 849, in Webster v. Inland 287 Ill. E. 2d meaning plaintiff’s stressing the the word “insured” 853[6, 7], in the thereafter in the endorsement and the in- omnibus clause and plaintiff’s employees in en- clusion of name in the schedule of harmony dorsement is in with our conclusion herein. distinguishable. Lajoie In Plaintiff’s are Central West cases Co., App. 701, 718(14), 71 S. W. 2d Cas. Mo. 814[7], (Mo. App.), (sus 169 W. 2d Rainwater Wallace S. 455[7] 450), W. 2d tained in 351 Mo. 175 S. the automobiles involved specifically being in the were automobiles described and were permission, Lajoie the named In used with insured. case original policy had automobile covered been sold son, named insured and an automobile owned his who lived with him, original for the automobile substituted rider attached to policy. So, purposes policy, for the of the the named insured owned the automobile. (La.
In La Blanc v. Amsterdam Cas. Apps.), New Co. Ct. 8 So. (sustained Sup. Ct., La. 247), 2d So. 2d employee paid premium coverage for the under the “Non-ownership” en Company, The Heath Hofmann, paid dorsement. pre mium in the instant ease. The instant endorsement provides, with respect person protected, to the applies that “the insurance only to insured”; is, Company. the Heath There was no provision policy. like in the Le Blanc In Louisiana the insurance may along carrier sued with the insured and a sufficient reason holding, La liability the insurer Blanc case was the for. employer, the named the doctrine of respondeat employee superior whether the named in the “Non-ownership” en personally protected (See be considered dorsement not. concurring *10 249.) 2d l. c. The court opinion, 13 So. considered the omnibus clause covered automobiles owned the named insured and pro- “Non-ownership” endorsements controlling visions over
925 authority for an whole, a not case, The read as provisions. facts. the instant Co., Bonding Ins. & Cas. Roofing Independent In Co. v. United paid had a 140, who 575, 9 N. 155 the named J. Misc. Atl. within view of our
judgment under circumstances recoverable insurer. from its had reimbursement clause, sought' and omnibus on cases also differ This is instant case. Plaintiff’s other not the Co., Baking Hathaway Liberty v. facts involved. Mutual Ins. Co. Marshall, 277 Mich. 425, and 428, 306 28 N. E. 2d Wilson Mass. 583, 269 N. W. rights and garnishee its is'now waived contends the by the say personally covered
estopped
that Hofmann was not
to
garnishee taking charge
policy.
upon
contention is based
The
Company
and Hofmann.
investigation
and defense of Heath
attorney
employed
a criminal
garnishee paid
Hofmann
attorneys representing
growing'
action
out of
and the
the collision
$850)
(totaling around
Hofmann in the two civil actions
also
charge
with
expenses
reimbursed Hofmann for
connected
the criminal
against
repair
his automobile. The civil actions were
Montgomery
Heath
was filed in
Hofmann. The first
county and thereafter
instituted in
dismissed. The second was
City,
St.
the main
to
proceeding. However,
Louis
action
1943,
October
with
civil
connection
the first
after
action
garnishee’s
explained
representatives
him that
to
the insurance did
him
a
personally,
garnishee
cover
Hofmann executed letter to the
stating
fact;
employed
attorney;
he understood such
that he had
an
attorney
garnishee
willing
fees;
he understood the
was
to
his
that such
part
garnishee
action on the
was with the under
standing
liability,
was not an
it
admission
and that it should not
place any liability
garnishee
to
respect
construed
on the
disbursements,
expenses,
judgments against
other
Hofmann.
Again, after the dismissal of the first and the institution of the second
action,
civil
Hofmann
garnishee
executed
like
letter
on De
(Consult
cember
with_respect
rights,
to reservation of
689.)
In
plaintiff’s-
C. J. S.
some
judgment
cases the
creditor
proceeded against
judgment
insurer
garnishment
debtors’
in a
proceeding
to collect a
within the
of the insur
Employers’
ance
Corp.,
contract. Cowell v.
Ins.
CG.; concur. foregoing
PER opinion Bohling, C., CURIAM:—The adopted opinion judges as the the court. All the concur.
Mary Wiggins McIntosh, Appellant, al . No. Lois et Charles (2d) 40181 . 204 S. W. One, July 14,
Division Rehearing Denied, September 8, 1947.