This is an appeal by garnishee from a $17,412.50 judgment entered against it in a garnishment proceeding, being the amount of a judgment theretofore rendered in favor of plaintiffs and against defendant Daryl Dean Smith (with accrued interest) in an action for the wrongful death of plaintiffs’ fourteen-year-old daughter, Ruth Meyers.
The action for wrongful death was tried three times and reviewed twice on appeal. See Meyers v. Smith, Mo.Sup.,
In the trial of the garnishment proceeding the parties filed what has been termed a “Stipulation of Facts” but what is, in truth, a stipulation that certain evidentiary facts (not ultimate facts) were true. (See Perry v. Wiggins, 8 Cir.,
No additional evidence was offered or received at the trial and, on the record presented, the court (without the aid of a jury) found the issues for the plaintiffs and against the garnishee and entered judgment, as stated. Garnishee has appealed and has stated the facts substantially as follows:
On May 17, 1955, a 1953 Ford automobile occupied by six teenagers was involved in a one-car collision, where the automobile left the highway and collided with a tree. One of the occupants of the automobile was Ruth Meyers, plaintiffs’ daughter, who died as a result of the collision. Another occupant was defendant Daryl Dean Smith, age sixteen, against whom the mentioned $15,000 judgment was rendered. The other occupants of the automobile were Margarita Barker (apparently age fourteen); Paul Head, age sixteen; Jerry Head, age fourteen; and Harold Owens, aj;e seventeen.
The automobile involved in the collision was owned by Ralph Smith, the father of Daryl Dean Smith. Prior to May 17, 1955, the garnishee had issued a policy of insurance insuring Ralph Smith and the Ford automobile in question. The policy contained a clause commonly known as an “omnibus clause” to the effect that “the unqualified word ‘insured’ includes the named insured and also includes any person while using the automobile and any person or organization legally responsible for the use thereof, provided the actual use of the automobile is by the named insured or with his permission.”
The policy contained a further provision, as follows: “16. Assistance and Cooperation of the Insured: The insured shall cooperate with the company and upon the company’s request, shall attend hearings and trials and shall assist in effecting settlements, securing and giving evidence, obtaining the attendance of witnesses and in the conduct of suits.”
Following the collision and death of Ruth Meyers the garnishee employed the law firm of Roberts & Roberts to make an investigation of the occurrence. In the process of this investigation Daryl Dean Smith signed a written statement (not dated) wherein he stated that he was the driver of the automobile at the time of the collision, and was driving west of Doe Run, Missouri, on Highway “W”. “The road at that point is blacktopped, 2 lane. I was going about 55 miles per hour' with my head lights on bright when we suddenly came to a very sharp curve. I started turning with the curve which was to my right and my arm struck the arm of Ruth Meyers who was sitting next to me and I did not make the turn completely. My car went off the edge of the road on my left, hit the shoulder, came back to the highway and then went back to my left, crossed the ditch and ran into a tree. I was thrown from the car before it struck the tree.” The persons in the back seat were also thrown out, while Ruth Meyers and Harold Owens were pinned in the wreckage in the front seat, on the right-hand side where the cowl and door struck the tree.
The other surviving occupants of the automobile also first advised members of the law firm of Roberts & Roberts that Daryl Dean Smith was driving at the time of the collision.
Thereafter, on June 27, 1955, a member of the law firm was advised by the parents of Daryl Dean Smith that he was not driving the automobile at the time of the collision, but rather Ruth Meyers had been the driver. This was the first information obtained by garnishee that Daryl Dean Smith was now claiming that he was not the driver at the time of the collision.
On August 13, 1955, plaintiffs instituted the mentioned suit against Ralph and Daryl Dean Smith for damages on account of the death of their daughter and alleging that Daryl Dean Smith had negligently driven the Ford on the night of the collision. On August 17, 1955, Daryl Dean Smith and Ralph Smith executed to appellant-garnishee a Reservation of Rights Agreement and, thereafter, on September 1, 1955, Roberts & Roberts, at garnishee’s direction, filed an answer on behalf of Ralph and Daryl Dean Smith. Plaintiffs subsequently dismissed as to defendant Ralph Smith.
In the three trials and two appeals of the wrongful death action Roberts & Roberts appeared as attorneys for Daryl Dean Smith by direction of garnishee and they were compensated by garnishee for their services. Before each trial the trial court was advised that a Reservation of Rights Agreement had been executed and that Daryl Dean Smith was being represented by Roberts & Roberts at the direction of garnishee and subject to the terms of the Reservation of Rights Agreement. Before each trial Roberts & Roberts advised defendant, Daryl Dean Smith, that they were appearing as representatives of garnishee; that he (Smith) was entitled to employ an attorney of his own choosing; and that Roberts & Roberts would cooperate with said attorney.
At each of the three trials Daryl Dean Smith testified that he was not the driver of the Ford when the collision occurred, but rather that Ruth Meyers was driving. He further testified at each trial that after the collision he asked the other passengers of the car to tell all who asked that he (Smith) was driving the car at the time of the collision. The surviving passengers of the car, who testified at the various jury trials, testified that Ruth Meyers had been driving and that Daryl Dean Smith requested them immediately after the collision to say he was the driver, and that they had so stated to
At each of the circuit court trials the jury was instructed that before they could find for plaintiffs and against the defendant they had to find that defendant was the driver at the time of the collision and, conversely, that if they found Daryl Dean Smith was not driving that they should find for defendant, Daryl Dean Smith.
From June 27, 1955, through the date of the last trial between plaintiffs and defendant, Daryl Dean Smith complied with every request made of him by garnishee.
On this record the trial court entered judgment for plaintiffs and against garnishee, as stated, for the amount of the mentioned judgment, interest and costs. Motion for new trial was filed and overruled and garnishee filed notice of appeal.
The sole assignment on this appeal is that the court erred in entering judgment for plaintiffs and against the garnishee based upon the insurance contract issued by garnishee to Ralph Smith, since defendant, Daryl Dean Smith, was not insured against claims arising from the collision occurring on May 17,1955, because he breached a condition of said contract by failing to cooperate with the garnishee. Appellant insists that the condition of cooperation was a condition precedent and the breach thereof prejudiced the garnishee, hence garnishee was not obligated to these plaintiffs on account of said policy of insurance.
Since this case was decided on the mentioned stipulation and exhibits attached, and by a Judge who heard no testimony, this Court does not accord to the trial court’s findings the same deference which it would accord had that court personally heard oral evidence in support of plaintiffs’ claim. Temperato v. Horstman, Mo.Sup.,
Appellant concedes that plaintiffs are, in effect, the unnamed beneficiaries of the policy issued by it to Ralph Smith; and that, as such, they may bring this action against the appellant. Appellant insists that the plaintiffs occupy no better position than the insured would have occupied had he paid the judgment and then sought reimbursement from the company; and that the rule is well stated in Donlon v. American Motorists Ins. Co., Mo.App.,
Appellant argues that under the facts of this case the conflicting versions by defendant Smith as to the identity of the driver cannot be charged to an honest mistake or
Appellant says that the basic and uncomplicated fact as to the identity of the driver could not have been forgotten by defendant Smith, who purposely and deliberately gave a false version to appellant after the collision, but later changed his version and tenaciously stayed with it. Appellant also says that the identity of the driver was a material fact; that, if he was not operating the automobile, he obviously had a valid defense, while if Ruth Meyers was driving the automobile when the vehicle left the road and collided with a tree, the appellant had the further valid defense of contributory negligence; and that in giving the appellant two versions concerning the identity of the operator of the automobile, one obviously false and the other true, defendant clearly failed to cooperate with appellant and appellant is relieved from liability under the policy.
Appellant also states that in the instant case it does not know at this date which of Smith’s versions, as to the identity of the driver at the time of the collision, is the correct one; that the finding of the jury in the wrongful death action necessarily indicates that they accepted the first version; but that that finding does not necessarily compel the conclusion in this cause that Smith was driving. Appellant further states that the “insurer was in a position of having to present to the jury false testimony and in having its key witness, Smith, impeached by prior statements, one of which was under oath,” and that one can only guess what would have happened “had Smith consistently told the truth, that is, that he was the driver.” Appellant also adds that “it needs no argument to sustain the proposition that insured’s counsel was substantially prejudiced in a material respect when at the trial of the wrongful death action the credibility of each of his witnesses was impeached by their prior statements contrary to their trial testimony.”
Appellant further states that, “The damage done by Smith’s conflicting stories is readily apparent regardless of which version is true”, and that, “If Smith’s first version, that he was the driver, be accepted as the truth, his later position that he was not the driver, and his testimony to that effect certainly dealt the insurer a grievous blow in presenting any defense or attempting any settlement of the cause.”
Under the pleadings and stipulation of facts two issues are presented, to wit: (1) Was Daryl Dean Smith operating the automobile at the time of the collision; and (2) if he was, did his conduct in thereafter making conflicting statements to the insurer so breach the insurance Contract and so prejudice the insurer that plaintiffs, the judgment creditors of Daryl Dean Smith, are not entitled to recover in this proceeding?
Appellant’s single assignment under points and authorities, as hereinbefore set out, in effect, concedes that Daryl Dean Smith was operating the automobile in question at the time of the collision and an assignment that Daryl Smith was not operating the automobile, if it had been made, would appear to conflict with the other assignment made and relied upon (See Rochon v. Preferred Accident Ins. Co. of New York, Supreme Court of Errors of Connecticut,
Where a casualty is covered by liability insurance, our statutes, Section 379.195 and Section 379.200 RSMo 1959, V.
The provision of the policy for liability insurance in question here requiring, as it does, that the insured shall cooperate with the insurer is a valid and enforceable provision in this state. Quisenberry v. Kartsonis, Mo.Sup.,
The burden of proof upon the question of compliance with the provisions of a policy ordinarily rests upon the insured, if he seeks to recover indemnity under the policy, or upon the injured party, as here, who stands in the shoes of the insured. However, while it may be stated generally, as we have, that plaintiff had the burden of proving the facts essential to the garnishee’s liability, yet in the instant case, where garnishee seeks to escape coverage solely because of an alleged breach of a policy provision requiring the insured to cooperate with the insurer, the burden was upon it to prove facts which would make that provision relieve appellant from liability. Kelso v. Kelso, Mo.Sup.,
We think the last mentioned rule applies in this case in view of the general terms of the policy in this respect; and that the burden of proving the affirmative defense of failure to cooperate in the respect charged rested upon insurer-appellant.
The specific terms of the cooperation clause providing for cooperation in particular respects as therein stated (such as attending trials, etc.) has been heretofore set out and it will be noted that appellant’s defense here is not based upon the matters specifically mentioned therein, but such defense rests upon a determination of whether the specific facts which appellant has now presented and here contends come within the meaning of the word “cooperate,” show a failure of the insured to cooperate with the insurer. It is evident that the first part of the provision, as to cooperation by the insured, is stated in a most general manner by use of a term “cooperate.” A multitude of matters other than those specified in the section might be said to be included under the term, depending upon the particular facts in the particular case. Such defensive facts are no doubt better known to the insured than to the injured party or the judgment creditor of the insured. Since the appellant now contends that the specific matters relied upon show a failure on the part of the insured to cooperate and are included within the general word “cooperate,” although not specifically set out in said section, the burden of proof rests upon appellant to prove the affirmative' defense that these alleged breaches
Appellant cites Northwestern Mut. Ins. Co. v. Independence Mut. Ins. Co., Mo.App.,
Appellant further cites Home Indemnity Co. of New York v. Standard Accident Ins. Co. of Detroit, 9th Cir.,
In Western Casualty & Surety Co. v. Coleman, 8th Cir.,
In Hawkeye-Security Ins. Co. v. Davis, 8th Cir., C.A.,
277
F.2d 765, 770, with reference to the case of Northwestern Mutual Ins. Co. v. Independence Mutual Ins. Co., supra,
In the construction of an insurance 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, insofar as open
Any uncertainty, therefore, with reference to the meaning of the cooperation clause in question here must be construed against the insurer. Also, what constitutes cooperation or lack of it in the defense of an action as required by such a provision of a liability policy is usually a question of fact for the judge or jury hearing the cause. Finkle v. Western Automobile Ins. Co.,
In Quisenberry v. Kartsonis, supra,
In view of the issues specifically submitted to the jury by the instructions given in the wrongful death action, it was conclusively established between plaintiffs and defendant in that proceeding that defendant was, in fact, driving and operating the automobile when it collided with a tree and plaintiffs’ daughter sustained the injuries resulting in her death. The same issue necessarily presents itself in this proceeding where a summons to garnishee has been issued in aid of an execution issued on the judgment entered on the verdict against defendant in the wrongful death case. In the pleadings garnishee has denied that Daryl Dean Smith was operating the automobile at the time and place in question and has alleged his failure to cooperate in the respects mentioned as discharging it from liability to plaintiffs.
The statement of facts concedes that on May 17, 1955, and prior to the collision, Daryl Dean had the permission of his father (to whom the policy of insurance had been issued) to use the automobile in question, the only restriction being that only Daryl Dean Smith should drive. At the scene of the collision Daryl Dean Smith advised the parties appearing there, including a patrolman, that he was operating the automobile at the time of the collision. Under the circumstances shown, this 16-year-old boy would have had little time for reflection or the presentation of a planned defense, nor would he likely have assumed the responsibility for the fatal injury to Ruth Meyers and injuries to others unless such was the fact. Further, the statement subsequently given to the insurance company reviewed the detailed facts and circumstances in a manner indicating that the party furnishing the statement stated the facts. In addition, we find nothing in the stipulation of facts tending to show that Ruth Meyers, age 14, had ever driven an automobile or that she could drive and, in view of her age, we may assume that she had no driver’s license and was not legally entitled to operate a motor vehicle. Nor can we be ignorant of the fact that boys of the age of Daryl Dean like to drive and would not likely permit a younger person to operate the automobile in any event.
As stated, appellant assigns the giving of conflicting statements to the insurer as evidencing a failure to cooperate and the insurer seeks to avoid all liability under its policy on the alleged ground of defendant’s failure to cooperate, not on any grounds expressly stated in the policy as evidencing non-cooperation, but upon the factual grounds set out in the stipulation of facts.
Appellant bitterly complains that the statements of the insured and his surviving companions at the scene of the tragedy were used to impeach the testimony of these same witnesses at the trial. In other words, appellant contends that it should have had the benefit of what we believe to have been false testimony, without having it weakened by proof or admissions as to prior conflicting statements of these witnesses at the scene of the collision.
As stated, we do not construe the statements made by the insured at the scene of the collision, or the statements given the insurer upon its investigation, to sufficiently evidence a failure by the insured to cooperate with the insurer. We find that the statements given by the insured to the insurer at that time were true. We must now determine whether the insured’s subsequent statement that he was not operating the automobile and his testimony to that effect in the several trials, as a witness for the insurer, constituted a failure to cooperate with the insurer. We find that it did not.
On the issue of failure of defendant-insured to cooperate with the insurer, the record, in our view, shows cooperation beyond the call of duty required by the cooperation provision. And see De Hart v. Ill. Casualty Co., 7th Cir., C.A.,
In view of our finding that Daryl Dean Smith was, in fact, operating the automobile at the time of the collision, we have concluded that appellant was not prejudiced by the subsequent statements of the insured which the insurer accepted and used as a basis for a defense to plaintiffs’ action. On the record presented we find no prejudice to appellant on account of any alleged failure to cooperate with the insurer.
The judgment is affirmed.