Royal Mining Company v. Fidelity Casualty Co.

TEEM, OCTOBER' 1911.

Mining Fidelity Casualty Co. v. & guilty, ample defendant etc. There was evidence sustain this instruction. quite unnecessary

It is for us to add that judiciary only apply well-recognized can rules determining meaning construction statute; of a departure language from the of an unam biguous justified any statute is not rule of construc tion, legislative power. and would be the exercise of responsibility leg for the wisdom and Legislature [Henry islation rests with the alone. & Coatsworth v.Co. Evans, 97 47, 10 S. W. Ry.

St. Louis &I. M. v.Co. Clark, It judg- from follows what has been said that the ment should be affirmed and it is so ordered. All concur. Respondent,

ROYLE COMPANY, MINING THE FIDELITY & CASUALTY COMPANY OF NEW Appellant. YORK,

Springfield Appeals, Court of December 1911. Motion for Rehearing January Overruled Insurance; Employers’ Indemnity Taking 1. INSURANCE: Charge Litigation: Estoppel: In an action on an Waiver. . employer’s indemnity policy company in which the insurance agreed indemnify against any loss common- damages injury law on account of suffered employee duty, appeared while on plaintiff, mining company, compelled pay judg- had been employee, ment it in an action who recovered mining company on account of the failure of the to observe “prop” Held, if statute. defendant took damage giving plaintiff any defense planation suit without ex- reservations, notice of its action or of its then its estoppel an was and that under the silence evidence this a jury. question for the MISSOURI Question. 2. APPEAL AND Constitutional In deter- ERROR: mining question whether of not constitutional raised so was give Supreme jurisdiction appeal, as the Court of the the to question decision, gives to be decided and not the of the result jurisdiction allegations the and the mere that the de- to hold in a of certain sections of fendant liable suit is violation the Constitution are not sufficient to a constitutional raise question. Charge Taking 3. EMPLOYER’S INDEMNITY INSURANCE: of Litigation: Estoppel: Presumption Prejudice. to Where as indemnity company, employer’s policy, under an the insurance brought by an control of the of an action assumes the defense against injured employee insured, with full the information of action, the of character it will be deemed to have waived objection liability was not within the of terms policy, unless.upon assuming charge litigation insurance it did to notified the insured that it not intend waive such objection, upon policy, in an and action insured to where defendant seeks relieve itself because exemptions policy, prin- of some under the terms of the ciple estoppel will be invoked and will be conclu- sively presumed prejudiced been to have defendant’s con- position, put duct an& inconsistent and need not be proof that it could achieved better results had defendant have interfered. sought 4. Letters Not Delivered. Where EVIDENCE: defendant plaintiff, to introduce letters written but did not show deposited postoffice, stamped letters had been in the plaintiff, they personally and addressed to had been properly delivered to letters such were excluded. Agent: PRINCIPAL AND 5. AGENT: Notice Ministerial general Capacity. agent The rule notice is that to an no- is - principal, apply tice to his but such rule does not when the merely agent acting capacity. in a is ministerial Agent: -:6. Statements Res Gestae: Evidence. State- agent ments an made time i at the nrelation to the business being regard then transacted and in to which he authorized gestae, act, part of the res form a if said or done while the passing transaction is and are admissible in evidence principal. term, gestae, RES Definition: 7. GESTAE: Evidence. res may properly primary defined as collection of facts con necessary stituting judicial and immediate field of a in quiry, inquiry such field of and within immediate all facts competent evidence. 1911. TERM, Serving Agent. Principal 8. Self Statements: EVIDENCE: principal agent, Communications between the or between general agent sub-agent, self-serving that are of a character, are not admissible evidence on behalf principal. creating an es- Conduct 9. ESTOPPEL: Intention to Deceive. toppel may deceive, an exist without intention to if is such upon as to lead a reasonable man to act it. estoppel an .Where is affirmed 10. -: Burden of Proof. upon by plaintiff ground recovery, relied proof the burden of consequently satisfactorily prove is on the estoppel upon such constituent' facts involved in the right of action based. right plaintiff’s -: Pleading: General Denial. Where estoppel, gen- action is based the defendant under a may prove go eral denial that that facts show the plaintiff’s alleged estoppel an never had existence. 12. Conflicting: Ignoring Defense: Not Cured INSTRUCTIONS: In Emjployer's Indemnity Other Instructions: Insurance. indemnity employer’s policy, an an action an instruction on behalf of the in the out which case set the facts undisputed, recovery - on were and which would authorize grounds estoppel, of the if the not defendant had notified the plaintiff upon charge what conditions it took of the defense suit, against plain-, of the in which an recovered employee^had tiff, ignored defense, but the the instruction affirmative Held, was substantiated evidence. the that instruction was give erroneous and to it was reversible error and that given error not cured an instruction on behalf of de- plain- defendant to the effect if the defendant notified the any exemptions, tiff that would not waive in thr contained policy, understanding, and took of the with defense could not recover. 13. -: Reversal. Where instructions -: for Grounds conflicting, presumably prejudicial error is and the giving conflicting ground instructions is for reversal. Each instruction need not cover all the if issues of in- series structions a whole are correct and and are harmonious so framed as to be calculated to mislead. But when the cause conflicting instructions, jury is sarily on submitted must neces- them, may obey wrong decide between instruc- right tion instead one. pleaded Waiver. A Reply: waiver should he PLEADING: petition practice pleading plaintiff’s and the a waiver in reply yet permitted by has been condemned it has still been of this courts state. 161 MISSOURI Rehearing.

On for Motion Insufficient Brief: Dismissal PRACTICE: 15. APPELLATE judgment Appeal. affirm the lower On the motion (cid:127) complied appellant Rule has not with court because appellant sub- and held to he a examined of the brief rule, compliance a vio- further and held with stantial only contemplated . the dismissal lation of this rule judgment. appeal of. not the affirmance Judgment: Opposite Notice to 16. -: 'Motion to Affirm Appeals, Springfield Party. Court of the rules Under respondent a motion desires to affirm the file where the days’ give party judgment, five notice he should the adverse accompany writing file motion of his intention such copy with of said motion. notice Court, Hugh Jasper Appeal from Circuit —Hon. Judge. Dabbs, and remanded. Reversed Percy appellant. Currey

H. Werner W. pais (1) estoppel are want- The elements ing in full the case at essential is a first bar.. knowledge party’s rights. of all the facts and of Taylor Estoppel, Zepp, Herman 489; 14 Mo. 452; Adams, Terrill v. 24 Mo. Burke v. Boulware, 257; Dooley, Acton v. v. Ins. G-aresche 69; Co., Co., 158; 146 Mo. v. 451; Burrill Ins. 211 Mo. party App. (2) Ins. Co., Tennent v. against 133 Mo. 361. The estoppel whom is invoked must have knowl- edge por- merely of all the material facts and not aof App. tion Co., of them. Tennent v. Ins. 133 365'. Mo. (3) knowledge. a cannot So, too, waiver exist without knowledge. presupposes- Haysler Waiver 61' Owen, v. County Mo. v. 72 270'; Johnson Mo. Lowe, Nevius 637; v. Mo. Moore, 356; Woodmen, 221 v. Modern Gallies App: 98 Pierce, Mo. Advance Thresher Co. 74 527; v. Burgess App. App. Mo. v. Ins. Mo. 684; Co.,-114 181; Co., 992; v. Ins. 105 U. 35-9, Benecke S. 26 L. Ed. Wolffie, 390; v. 95 333, Globe Ins. U. 24 L. Ed. Co. S. OCTOBER, 189 TERM, 1911. Co. Langdon, Ins. 420 25 L. Ed. ; Pence v. IT. S. 99. Eed. v. Ins. Co.. Hambleton Thomas, v. 82 409; Murray Carpenter, 192; v. 91 Va. 6 Wilson Bissell, 95; Co., 57 Yt. v. Ins. 367; v. Mont. Findeisen H'einze, 17 right (4) waiver, or a In 525. order establish party appear estoppel, it must founded on estoppel pleading or been led to do, has the waiver something which action or omission do, omit to prejudice C'o., to him. Weir v. Lumber resulted has Mo. v. 175 Bros., 186 Mo. Rosencranz Swoff'ord 396; Mo. Co., v. Ins. 100' D. Keet-Rountree G. Co. 537; App. L. Ed. Wolff, 390; 95 IT. S. 24 Ins. v. 514; (5) (4 Ed.), May 507. sec. Where 2 on Insurance tending prove that a letter was there evidence is postage prepaid, properly addressed mailed, receipt. prima v. Pier evidence of its this is facie 134 Mo. 169; Gritzner, Mo. v. Heinrichshofen, 67 State App. v. 119 Herf Co., v. Transfer Mo. Ward 523; 88; App. 95 Mo. Pezoldt, Bank v. Railroad, 181; Mo. 100 (6) App. 111 Let- Walker, v. U. 410; Rosenthal S. contemporaneous ters, with acts, declarations showing question, act are admissible evidence party knowledge had and information which performed circumstances who and to show the act, (13 Ed.), surrounding on Evidence the act. Greenleaf Ency. Evidence, Erfort 101, 108; secs. 391; App. v. Loan Consalus, Co., Clark Mo. 213; App. Burnett, 37 Mo. Friedman 566; Folk v. (cid:127)253; App. Taylor, Holberg, 1 Wall, Beaver v. Ed. 601. 642, 17 L.

Haywood respondent. Scott objection (1) within may waived; and of insurance the terms of the control of the defense undertakes insurer when the injured person against brought anof action of the character full' information with insured, 190 161 APPEAL REPORTS; MISSOURI Fidelity

Mining Co. v. Co. & the action and or without reservation notice the insured that it did not waive such ob intend to have, objection, jection, it will be deemed to waived liability that the within in was not the terms of the policy. Canning Guaranty surance v. Accident Co. & Fidelity Co., 133 S. W. & Cas 664; ualty Myton App. Co., 126 Mo. v. 104; & Cas ualty App. Co., Mo. 117 Tozier v. Accident & 442; Guaranty Corporation, 410, 478, 109 N. W. 94 Minn. Employers’ C'orp. Liability 103 N. W. Assurance 509; v. Co., 962; Coal 141 Fed. Cement Co. v. Travelers App. 11 Insurance N. Y. Div. Co., 285; 42 N. Y. S. EPg. Ency. (2). 11 Am. Law, 13. The insurance company, having recognize validity elected to the main clause the contract of as insurance, and suming thereunder as an indemnitor, provisions repugnant subsequent waived the of such clause. K. M. &iB. v. Railroad, C. ; 151 Mo. 390 Joseph Hickey, Railroad, St. v. 116 Mo. 636; Allen v. 9(3) 156 5 Mo. Under a of insurance it is not McCulloch, necessary plead even waiver. v. Co., Ins. 113 Mo. Mickell v. Co., Ins' 144 420; Mo. v. James 606; Murphy Association, 148 Mo. v. Ins. 1; Co., Mo. 70 App. (4) may pleaded 84. But the waiver in a reply. Ehrlich v. Ins. Co., 231; Pierce Water City, App. v.Co. Pierce 61 Mo. Moore 471; v. Gran by, 86; Zoll v. Cornahan, 83 Mo. Whiteside 35; App. (5) v. McGruder, Mo. 364. The court did excluding err such letters as it as excluded, they deposited there was no evidence that had been postoffice, stamped in or mailed, and directed to the proper Phillips Dunlap address. Scott, v. 43 Mo. 89; v. U. S., 165 U. Rosenthal S. Walker, U. S. (6) Self-serving declarations —communications principal agents gen between between the agent sub-agent eral and the are not admissible be principal they self-serving half of the declara Mfg. Kellog tions. Lumber Co., Wis. 191 TERM, Casualty Mining Fidelity Co. & v. Co.

122 N. 301, W. Ark. 737; Forrester v. 90' Evatt, Co. Dispatch 119 S. Erie Ill. Cecile, W. v. 112 Co. 282; Ency. (7) Any 180, 10 PL & 21. Pr. omission of de plain fendant’s affirmative defense in for instructions by given tiff is cured instructions for defendant. Co., Schroeder v. Michel, 48;Mo. Reames D. v. O. App. Kingman Shawley, 99 Mo. Mo. 403; & App. App. 60; 689; Railroad, Ellinson v. 60 Mo. Mfg. App. Co., Pries, Lemser v. Schaaf App. in NIXON, P. J. This suit commenced was Jasper county respondent against circuit court of appellant upon indemnity policy of insurance exe- appellant respondent. cuted Jasper operating was a mine in county procured employers’ of the defendant an indemnity By policy. policy, agreed the defendant indemnify plaintiff against any to loss common- damages injuries bodily law for on account of accidentally by any employee or death suffered or em- ployees duty, of the while on to extent any Among things, $1,500 one case. other duty policy became the of the assured under the give happening an accident to notice immediate company to the insurance with the fullest information particulars obtainable and full of all made claims co-operate account said and to accident, with and company render insurance all the in its assistance power; against and, when a suit was commenced damages for assured on account of an accident covered policy required immediately to forward was company the home officeof the insurance summons process, company agreed or other and the insurance proceedings at its own cost to defend such the name behalf and on or settle the assured pay indemnity pro- claim unless it should elect provided for. It vided was further that the assured 161 MISSOURI any any or interfere with claim should not settle negotiations without settlement consent company,', further the insurance assured request company, required, insurance at neces- securing the information evidence aid all procuring effecting sary evidence. a settlement day while March, 5th On the by Marvin Mc name force, a laborer the of was plaintiff’s employed fatal mine, was while Daniels, employment ly injured of the char and His was died. single policy. by im and He was acter covered the Nancy surviving Mc mother, him left his marriéd but proper commenced time mother Daniels. his Within against plaintiff $10,000 the of to recover sum suit the killing alleged negligent damages, said as for the after the death of Marvin Marvin McDaniels. Soon copy inquest a a was held and McDaniels coroner’s the taken was forwarded to the insurance evidence company company. insurance on, that time the From or circumstances made more less examination of injuries attending death, and Marvin McDaniels’ special investigations inquiry ex and its by Nancy Mc suit was commenced aminer. When copy to insur Daniels, a of the summons was sent company, plaintiff the informa and the furnished ance complied requirements with of the tion and part. com first, on its At insurance of insurance pany as seemed to be in some doubt to whether liability, was common-law statutory liability by of a failure reason to observe prop (now 8473, K. as the statute Sec. what is known 1909). Furthermore, the defendant seems to have S. appear as to it and de undecided whether should been upon being finally, action, the McDaniels but fend manager, urged do so local notified charge attorney of the defense of McDan to take doing understanding that in so iels suit exemptions its in- did not waive under TERM, 1911. OCTOBER.

clenxnity policy. At that time defendant wrote manager notifying plain- sent a letter to its local (Royle Mining Company) tiff of the terms on which charge litigation. attorney it took company litigation insurance took of such request plain- later him associated with at Judge Gray, attorney, tiff, Howard assistant joint plain- the two made a defense of the suit. The Nancy judgment tiff, McDaniels, recovered for the judgment sum of $1,000 and costs of suit. The predicated upon plaintiff’s liability by reason prop its failure observe the statute. From judgment appeal C'ity was taken to the Kansas Appeals Court of where it was affirmed. Thereafter, execution was issued and defend- refusing pay, paid judgment ant full, costs in and now seeks recover the amount so paid company. from the insurance cause,

At the first trial of this a demurrer plaintiff’s by evidence was sustained the trial court plaintiff appealed City from which the to the Kansas Appeals, by Court of and was held that court that the plaintiff prima showing had made a facie of the de- upon liability indemnity policy fendant’s to it ground estoppel, judgment and the reversed was and the cause remanded for a trial. Reference new opinion in made to that case for further informa- [Royal Mining Company Fidelity tion. v. The Casualty Company App. York, New 103 S. W.

Upon plaintiff judgment retrial, obtained for the ap- $1,461.14, sum of the defendant has pealed. appeal originally This was sent to Su- preme ground involving on the of' Court constitu- question, tional but it was on order of that re- court manded to this court trial. App. —13 161 MISSOURI v.Co. was plaintiff’s in case action cause of

The in upon its under the defendant’s founded up policy. demnity in its answer The defendant set liability Nancy plaintiff’s McDaniels, judgment act the McDaniels which the rendered was upon the ion based violation policy indemnity prop did that the statute, reply liability. set not cover its such The. plea up in the answer as a to the defendant’s defense equitable estoppel, that de the effect nature of an knowledge having character full of the fendant, after and acts action, conduct McDaniels liability, objection if said any, waived the such cause, policy insurance was not within the terms of its recognized being said said action as covered policy said insurance, and elected and-did defend charge employed counsel, action at own took costs, to its final de of the and defended action defense, and on behalf of the termination the name policy defendant, herein of insurance. under said up estoppel tenus, a defense to the that at the ore set ac time it took defense McDaniels understanding would tion it did so with exemptions indemnity claim its under seriously plaintiff. is the con This so notified question of fact in the case on which the evi tested sharply conflicting properly and it was sub- dence was jury. mitted to questions on re raised, were

Some constitutional City was remanded the Kansas trial, after the case allega Appeals. The substance of these of Court in this liable hold the defendant tions “That is, of 15 of Art. 2 of the is á violation Sec. Constitu suit 10 of 1 of the and of Sec. Art. Con Missouri, tion of providing that no state States of United stitution any impairing obligation any pass law shall contrary to fourteenth amend also contract, and It is of the United States.” ment to the Constitution TERM, Fidelity Casualty Mining Co. v. & allegations held that such do not raise constitutional question give Supreme jurisdiction or of the Court appeal. [Hilgert Asphalt Paving Co., v. Barber subject-matter, Mo. 319, 72 W. “The S. question

is, the decided, to be and not the result jurisdiction.” gives Dugan decision, [State ex rel. City Appeals, v. The 302, Kansas c. Court Mo. l. 16 S. W. 853.]

Many questions urged upon at now our tention and which those we are asked to consider are formerly passed City Kansas Court Appeals. Among questions is, so involved whether the conduct and action defendant taking charge litiga defense the McDaniels estoppel, waiver, tion constituted an election. question This decided on the demurrer appeal adversely former and it was defendant, objection liability held that the that a is not within indemnity may the terms of the waived; that when the insurer undertakes the control the de brought by injured person fense of an- action the. against the with full insured, information of the char acter of action, and without reservation or notice to the insured that it did not intend to waive objection, such it will be deemed to have waived objection that was not within terms policy. principle sup of the insurance This is well ported by following authorities.: Can Fairbanks ning Guaranty Co. v. London Co., & Accident App. Royle Mining W. 664; 133 S. Casualty Myton supra; Fidelity Co., v. App. Co., 442, 92 1149; S. W. Guaranty Corp. (Minn.),

Tozer v. Accident & Ocean Guaranty 410; 109 N. Corp. Tozer W. v. Ocean Accident & Liability (Minn.), Employers’ 103 N. 509;W. Corp. Chicago Big Muddy Assurance Coal & Coke Co., 141 Fed. Glen Falls Portland Cement Co. App. Travellers’ Ins. 11 Y. N. Co., Div. 42 N. Y. 161 MISSOURI Casualty Fidelity Mining & Co. Co. v. Maryland Navigation Supp. v.Co. Cas- Globe ualty (Wash.), 81 Pac. respondent’s plea appellant claims that the resulting prejudice estoppel the fact of rests appellant respondent act of reason of from the having the defense of the McDaniels ac- assumed injured respondent was not fact

tion, and way by prejudiced any thereof, or reason and there- estoppel. support no To fore there was this conten- appellant points respond- to the tion, the evidence that attorney employed appellant’s own ent to assist the jointly they attorney and that defended the suit. regard employment by to the The facts attorney are that the insurance of an com pany, attending after an examination of the facts attorney, accident, ordered its Frank L. Forlow, charge take of the defense of the but suit, McDaniels by Nancy as amount claimed afterwards, McDan iels was and the limit of $10,000, defendant’s indemnity $1,500, under its protect was in order to the excess, itself desired attorney have its own to assist the defense, and applied Judge Gray to Mr. Forlow to have Howard request him. This associated with Mr. Forlow at first saying far as as he was he refused, concerned did not Afterwards, need assistance. however, some of application made second stockholders Mr. employment he consented to the Forlow as attorney. appeared their But it sistance that Mr. Judge had the defense Forlow and that acting Gray assistant as associate, both co-operated they and did what could to make de fense effectual. City Appeals Court of

The Kansas affirmed principle estoppel follows: “The on which de estops be held liable is that fendant should taking position party inconsistent with one previously prejudice him, assumed and TERM, 1911. person. Co., 94 [Tozer v. Insurance Minn. third permitted will Defendant not be to serve one 478.] by taking position, throughout purpose as it did progress suit, the McDaniels that the recognize by it was one would as covered policy, using position de- and then after that to the plaintiff, change by denying all lia- triment of front presumed pre- bility. have must be to been Plaintiff judiced by put thé not such conduct and need proof that it could have achieved better had results (The ours.) not italics are defendant interfered.” presumption prejudice herein referred being injured by assured the defense to as to the litigation pre- is not rebuttable of the McDaniels ‘‘ sumption meaning a maxim of fact. The is that as allege jurisprudence act one who has done an cannot in that he did not also intend that its usual defense Cyc. consequences [16 follow.” should 1081.] complains Appellant that certain which letters by in were the court excluded. evidence offered by Many letters were sent the insurance com- of these - general pany in one from its offices St. Louis to Boggess at who that time was the resident Samuel C. company Carthage, manager insurance at Mis- solicitor of insurance its behalf. As to souri, Boggess testified that all re- letters, letters he these Royle Mining Company ceived addressed.to company to deliver to that did de- asked he he was manager, general Mosely; all Mr. that not liver Mosely person, by him but he were delivered by thought were that mail; of them delivered most by deposited mail delivered were were those which postage prepaid, postoffice, addressed to Car- in the Boggess testi- All the letters Missouri. terville, by person or were delivered, mail, either fied he no and there was court; in evidence admitted had been which were excluded the letters evidence stamped postoffiee, deposited and addressed in the 161 MISSOURI Mining Co. v. personally plaintiff, to it, delivered and snch v, [Phillips Scott, properly excluded.

letters were Dunlap v. S., l. c. Rosen 486; U. U. S. Walker, thal S. U. Boggess

As to letters received but appellant delivered to claims that Boggess agent company was the the insurance plaintiff company receive from and deliver to the question; letters at the time he was agent plaintiff company open to receive and receipt and that his letters; of the letters therefore receipt plaintiff. would constitute a of them The now letters under as consideration, the evidence appellant plaintiff were to shoWs, directed the company Carthage, at its office the of but evidence really shows that its a.t office was not Duenweg. Carthage appeared but at It evi- plaintiff company dence that the directors of the oc- casionally meetings, Carthage held their at at differ- places city ent in the as and, was most convenient, among places, Boggess. other in the office of The Boggess plain- evidence as to the .connection of with company tiff frequently opened was that he the letters plaintiff’s directed with the consent plaintiff’s agents, and delivered them to and in that respect acting he seems have to been in a mere min- capacity. isterial general agent is that rule notice an is principal,

notice his apply but the rule does not agent acting merely where the is in a ministerial capacity. acting, agent When so a does not act as principal, imposed upon substitute nor is there agent duty communicating principal to his knowledge acquired. by thus This illustrated agent company an case insurance whose chief business is insurance and who carries on the insurance business at an office of his own, but also keeps mining corporations for a half-dozen books as TERM, 1911. v.Co. kept being office; him at his a such books side-issue, would in such a that such facts was held case agent the insurance such a relation between constitute companies mining with them as bind and such knowledge self-serving made notice declarations agent. or company [Fairfield the insurance to its Rogers Savings Dutton, Chase, Bank 72 Me. 226; Cyc. 182 Mass. 187; appellant that it is further contended

But correspondence insurance as whole between the Carthage manager company at resident gestae; part as the res that admissible as contemporaneous and acts were letters, declarations they question, in evi- admissible with act knowledge showing information dence as showing performed party the act and had who appellant undertook under which the circumstances appel- litigation; McDaniels the defense every believe that those had reason to lant’s officers they right had a had been delivered and letters supposition and act. act did so gestae has in the law of evidence The term res application. may properly greatly It extended constituting primary facts collection of defined as necessary judicial in- of a and immediate field inquiry quiry, all such field immediate and within Cyc. competent [16 1148.] evidence. the facts agent made at time in relation of an Statements regard being transacted and in the business then part authorized to act form of the he was gestae if done the transaction said or while res prin- passing evidence and are admissible Single- cipal. Steinmesch, Mo. 168; [Beardslee Railway Mann, 464; Co., ton v. Devlin to well es- of law however seems be The rule 545.] self-serving declarations —communica- that tablished principal agent or and between tions between sub-agent general agent not admissible —are 161 MISSOURI Mining Co. v. Co. principal. Mfg. [Kellog behalf of the Lumber & Co. Mfg. (Wis.), v. Webster 122 N. Co. W. Forrester- (Ark.), Duncan Land v. Evatt Erie S. 282;W. Dispatch Co. v. Cecil, 112 Ill. 180.] principal investigation matter at the under charge trial was whether the defendant took litigation indemnity McDaniels under the terms of its charg’e litigation alone or whether took of such plaintiff with notice to the it reserved all its rights exemptions the terms under indemnity policy. of such

Anything parties said either done knowledge with the of the other as to the defendant’s charge taking action of the defense of the McDaniels part gestae; action was a of the res but the uncom purposes municated and intentions of the defendant regard litigation to the defense of such irrele were consequently incompetent purpose vant and properly question primarily were excluded, being, what effect conduct of defendant, unex plained, produce was calculated to and did on the plaintiff. The circumstances under which the defend ant took defense said suit were such part notify as to demand on its -it should rights. of the reservation its Conduct creating estoppel may exist without an intention if deceive it is such as to lead reasonable man to Navigation Maryland act it. [Globe v.Co. Cas ualty (Wash.), 81 Pac. It became the de speak duty explain fendant’s estoppel, action, and its silence would constitute an position litigation and the assumed bind would might this, whatever in uncommunicated Having tention. assumed that under the .terms of its indemnity policy duty it was its to defend the Mc having suit, Daniels after cast in been that suit it can change say duty not now front and that was not its supposed plaintiff to defend said suit or that TERM, 191L 201 v.Co. rights. exemption As said knew that it reserved its c. l. v. 110 Mo. J., Cook, in Bensieck Sherwood, litigant are not allowed 182, 19 W. 642: “Parties S. play positions fast to in court; to assume inconsistent Having elected to blow hot and cold. loose; they adopt con action, will a certain course of they adopt.” which fined to that course question proof does not seem The of burden of party any in the have been either at time raised in this but course of the trial either nisi or court; question likely of to be evolved in the course is that it and, another the further reason trial, light question on the as to tends throw some given, propriety of instructions it should receive at our hands. consideration estoppel upon by is affirmed and relied recovery, ground of as a and the burden

proof consequently satisfactorily prove on it to each estoppel upon constituent fact involved right [City Ar of action is based. Louis v. St. plead not, 94 Mo. S. As there 15.]W. were no ings beyond reply, proof the burden must be determined the nature rela evidence and its general tion case. Under the defendant’s competent de any prove nial, it was for the defendant to alleged plaintiff’s fact that went that the es to show toppel [Jones never an Rush, had existence. v. Moseley, 118; Mo. S. Jacobs v. 91 Mo. 364, 57 W. Chapman, Feeney App. 371; v. S. W. 135; Railway Co., Bolton 172 Mo. S. W. 92, 72 Scud App. If un Atwood, der rights derstood that the defendant reserved its under charge indemnity policy at the time it assumed then there never action, defense the McDaniels estoppel existed but defendant; contrary, if it took of the defense with any explanation giving plaintiff act, out of its then its estoppel. case, Under the facts of silence was MISSOURI Fidelity Casualty

Mining Co. & Co. plaintiff when had shown at the trial that the de- fendant made defense of the suit it McDaniels as required policy, prima to do under its amade by raising presumption facie case in its favor. The thereby burden of evidence was shifted cast (not yet officially [Link defendant. v. Jackson reported), 139 S. 588.]W. When in its defendant prove turn tending introduced evidence took control of said plaintiff action with notice to the of rights, the reservation of its exempted the burden of plaintiff evidence then shifted to the to show preponderance of the evidence that it had no under- standing when charge the defendant took of the de- claiming. fense exemption that defendant was its rights policy. under the

Complaint is of made instructions numbered given plaintiff and 3 for the in this which in- case, structions follows: jury The court they instructs that if be- “2. preponderance greater weight

lieve from the of that, evidence Nancy after said suit of McDaniels brought against plaintiff, plaintiff was. noti- fied defendant of said suit, and that the defendant employed attorney Prank L. Forlow as in said mat- and became ter, informed of the character and nature allegations plaintiff’s petition of suit, in said through and afterwards that the defendant herein, attorney, Frank said L. took Forlow, proceeded in said suit, defense and defended the plaintiff, same, name behalf of the a final determination of said suit in the circuit court county, Jasper finally judg- which suit in a resulted Nancy therein, ment in favor McDan- Royle Mining iels, and Com- pany, for the sum of one thousand and the dollars defendant, and that the the name suit, costs attorney, plaintiff, through its Frank on behalf of appeal judgment prosecuted an from said L. Forlow, TERM, Jasper county of the circuit court of to the Kansas City Appeals, City Court and that the said Kansas Appeals Court judgment affirmed the said Jasper county, circuit court of and that the defendant judgment, did pay not settle said suit or and did not provided indemnity pol- said icy of insurance, and that the costs of said suit were by the clerk of the circuit court at taxed and $259.70, that an execution was issued from the circuit court Jasper county judgment, of on said and that there- upon plaintiff, day on the 29th 1905, of March, paid judgment together the amount of said with said costs, interest amounting and sheriff’s commission, the sum $1,259.70, of and that the defendant has failed pay and refused to said sum of $1,259.70'to jury plaintiff then the will find for the in of the sum per with interest $1,259.70, thereon at the rate of six per day cent annum from the 29th 1905-, of March, present date. although jury

“3. The court instructs they may find and believe from the evidence that defendant failed to whether the of determine cause brought by Royle Nancy action McDaniels Mining upon Company lia- was based a common-law bility statutory liability -peti- aor until the amended April tion in cause, to-wit, was said filed you and if further find and believe from evidence petition that, after said amended filed, the de- and fendant took control continued the defense of said notifying plaintiff it cause without this cause that plaintiff; be under would not liable its judgment- against plaintiff, that, after was rendered prosecuted appeal it said cause to Kansas paid City Appeals, and that the defendant Court attorney, paid Frank all the also its costs therefor from Forlow, said cause L. for services rendered de- suit to its final the institution said time of City Appeals, Court of the Kansas termination 161 MISSOURI thereby rights deny liability waived its under said you policy; if be find and so believe the facts to you from the evidence should find the issues damages plaintiff, assess its the sum per $1,259.70, with interest at cent the rate of six per day annum the 29th March, from 1905.” gave among defendant, court also for the instructions others, numbered 3 and (cid:127) follows: jury you

“3. The court instructs the that if be- defendant, lieve from the evidence that enter- before upon ing participating in the Mc- defense of the ca,se against plaintiff herein, Daniels notified the exemption intention to claim policy, provid- under its based the clause ing any injuries should not liable for sus- failure tained reason of the herein any obey affecting of the statutes of this state the safety persons, upon of and that it would enter or participate in the defense of the ex- case, McDaniels pressly reserving plaintiff right with its con- under its any liability any judgment tract to disclaim for ob- upon tained in the McDaniels case, based the viola- plaintiff tion of. such a ject and the ob- statute, did not you thereto, then are instructed that the act of entering upon participating the defendant in or in the defense of the McDaniels did not constitute case, exemption waiver of its said condition of your ease, in such and for verdict should be the defendant. you jury that if

“6. court instructs the find from the that the defendant com- evidence insurance L, attorney, pany, by Forlow, its Frank assisted Gray, attorney the for the Howard defended Royle against Nancy of McDaniels said case Company, Mining de- that, at the time of said Royle Mining Company had notice fense, the said company knowledge defend- that the defendant was OCTOBER, TERM, 1911.

Mining ing reserving right case, the said to disclaim lia- bility injury in case should be determined that the Nancy to the son of McDaniels resulted from a vio- affecting lation of statute of of Missouri state safety persons, your finding then for should be against plaintiff.” the defendant and plaintiff entirely Instruction No. 2 is based substantially facts that are admitted in this case by the defendant. It was that the suit uncontradicted Nancy brought against plain- McDaniels was plaintiff tiff herein notified the defendant employed of said suit, and that defendant Prank L. attorney Porlow said it became suit; plain- informed of the character and nature of the petition prior tiff’s the time therein it took part litigation, the defense of McDaniels obtaining attorney, that after such information its Prank Porlow, L. took in be- the defense plaintiff half of herein to a final termination of judgment that the result the said suit was suit; Nancy therein, McDaniels, favor Royle therein, Company, $1,000' suit; for the sum of and costs of through prose- attorney herein that the defendant Appeals appeal City cuted an to the Kansas Court judgment Jasper of the circuit court of pay county that the defendant did not affirmed; judgment; $259.70; at said costs were taxed judgment duly that an issued on said execution was judgment plaintiff paid said to- and that herein the gether amounting to costs, with the $1,259.70; pay failed to said sum defendant has any part thereof. with interest thereon or had introduced trial, the defendant At the Royle 1903, directed to letter dated March Company, can . . we in which it said: “. express un- appear only case with the and defend this any by derstanding doing do not waive so we 161 MISSOURI Mining Co. v.

provision policy. develop of onr If it that re- should any, covery, if is based the violation of a stat- company responsible you ute, our would not be to any judgment, expense might or in- cost express understanding, curred in the case. this With today writing attorney appear we are our to and de- completed investigation, fend. After he has his we upon you will instruct him tó call and discuss the facts in the case.”

So that under the condition evidence, instruction, effect, was a verdict, directed and re- quired jury plaintiff irrespective to find for the plaintiff by notice to the the defendant of the terms on which it claimed to have taken litigation. attorney during And the argument sought impress by argument upon his jury this construction of the law. He made the following jury: statements to they things; they had to do

“Now, one of two mining company, through insured, had to tell agent, Boggess, way, their Mr. or some other ‘This policy Clause B is our out, that lets us therefore we don’t have to defend I that case.’ sub- you they They mit to have could done that then. agent have could talked to the said, ‘It is to our say go nothing interest ahead and about that clause go it B, best ahead and waive that clause and if B, that, we do of course we defend gentlemen, they Now, case.’ did defend the case and say they they only I if the case, defended could defend by waiving being policy.” B clause covered object Mr. to that Werner: “We statement.” The you objection Court: “Let record show make the except.” and I overrule it.” Mr. Werner: “We Mr. n Scott, argument: later on in his “Now that was a proposition; nice sort of awas beautiful sort n argument put up to a man an insurance com- bought pany, policy thinking who the insurance in- TERM, 1911. Fidelity Casualty Mining Co. v. & company sured Mm, for the insurance down walk say, you bought paid you ‘Yes, our ” you.’ and all it, that, but it doesn’t insure Mr. Currey: object “I for the reason the instructions jury they the court tell the are not and ar- liable gument prejudicing jury.” made for The Court: objection “The Currey: is overruled.” Mr. “We except.” by plain-

The construction of the law as declared strongly tiff’s instruction 2No. was thus enforced by plaintiff’s upon jury interpre- counsel and his emphasized by tation of the instruction was rul- ing's argument by denying of the court to such objections of the defendant. proceeds upon

Plaintiff’s instruction No. 3 theory that the defendant failed to determine whether brought by Nancy the cause of action the suit Mc- upon Daniels herein was based liability statutory common law or a until the petition April amended was filed on proceeds jury they to instruct the that if find and be- peti- lieve from the evidence that after said amended tion was filed the defendant took control and continued notifying plain- the defense of said cause without policy, that it tiff would not be liable under its then they plaintiff. should find a verdict for the together, pro- instructions,

The two considered hypothesis. ceed an alternative Instruction No. predicated finding jury was that af- ter the McDaniels casé was if the defend-’ commenced, ant became informed the character and nature of allegations petition in said suit there- recovery after took defense, then gave authorized whether the defendant notice rights indemnity policy reservation of its under its or not. Under instruction No. 3 for re- covery predicated finding by jury on the petition if after the amended was filed the defendant 161 MISSOURI APPEAL BEPOBTS, Miaing Co. charge

took of and continued the defense of said cause notifying plaintiff without herein that it would not he liable recovery on its then a plaintiff. allowed to the part by

On the of the defendant the court numer- ous instructions declared the law if to be that at or prior taking charge of the defense in McDan- iels case, the defendant notified that any exemptions would not waive in in- contained demnity policy and took of the defense with understanding, could not recover. apparent

It is that these instructions are con prejudicial. flict. presumably In such case, error is Metropolitan Ry. App. [Ross v. Co., 132 472, St. Mo. Imp. 112 S. Mansur-Tebbetts Ritchie, W. Co. v. 9; 143 l. 612, 613, Mo. c. 45 S. W. The law is thor 634.] oughly adjudications imbedded of this state giving conflicting ground that the instructions is [Sheperd reversal. v. St. Louis 189 Co., 362, T. Mo. 87 S. 1007; Heidorn, W. Morton v. 135 Mo. l. 617, c. 618, In 504.] the case last cited, S. W. the Su preme liberty do feel Court said: “We at to de clare harmless the error which we have above indi jury cated. an error in Where an instruction to a pre trial, occurs at a and it is followed result judicial excepting party (as, to the for instance verdict) reviewing an case, this adverse court can properly not. consider the error otherwise than as a contributing cause that result, unless the exact bear ing can discerned, has had thereon be and is found to rights complaining have been harmless to party. all that meant This is the declaration occasionally been made that has effect presumptively prejudicial.’ Tay [State ‘error is v. 161, 24 S. lor, Boston, W. etc. Railroad 451; O’Reilly, Sup. Rep. v. 158 U. S. Ct. (section 2303) Missouri does not weaken statute declaration, of that such error as has theflorce TERM, 1911. regarded by been described should be, is, ‘materially affecting court as one the merits as mentioned action,’ section.” if Each instruction need not cover all the issues the series of instructions as a whole are correct are not so framed mislead, as to calculated to but harmonious; when the cause is submitted conflicting necessarily jury instructions, de must may obey wrong cide between them and instruc right Railway tion [Baker Co., instead of one. Railway Spillane Co., l. c. S. 26 W. in Mo. l. c. 20 S. W. As stated Baker Railway “The rule of settled that Co., law is well give conflicting to re inconsistent instructions is recognized versible error. The rule been often has applied. quite frequently An as . . instruc . by helped tion if taken erroneous, itself, is often out subject, by upon the others same but even such they contradictory.” cases must not be respondent, to law The break the force of this following conflicting instructions, as makes omit That while the second instruction does claim: yet defense defendant, the affirmative made given any, if defect, cured instructions instructions, and that consid defendant, for charge, fully present ered one both sides of as jury. Respondent support case to the this con case of Michel, Schroeder v. tention cites 314, which breach c. was action for l. S. W. marriage promise in which the Statute of Lim interposed as defense itations was defendant. given plain in said for the The instruction cause first from consideration the defense of omitted tiff given Limitations, but an instruction was Statute defense in which the law as such the defendant for properly that -it was It contended stated. was give author- the first instruction the court to error for App. 161 —14 161 MISSOURI APPEAL REPORTS,

izing plaintiff’s recovery mentioning without the de- fense of the Limitations. The court said: Statute.of present “In the instance, instruction number one plaintiff says nothing for Limita- Statute of hearing tions, but the of instruction number six qualification plain: defendant very of it is ‘Even jury if the believe, from the evidence, that defendant promised marry plaintiff, yet, you if further be- period lieve language aat time,’ etc. This could leave no if doubt that the facts in num- named ber found, six were could not recover even if the facts named number one were also be- ” very authority lieved to exist. It is evident that this application can present have no to the facts of the conflicting present case. The instructions case questions jury relate crucial of fact which the was called decide. evidence as to the question plain- of notice as between the evidence of the hung trembling tiff and that of the defendant in the question balance, and awas vital and one on which jury there was room for the to entertain a difference opinion. duty In such case was the of the trial give stating court to the instructions the facts neces- sary recovery plain unequivocal language ato in and jury might readily so that the understand the law of the case. plaintiff ques-

In the instructions for the some tion is made as to the nature of the notice that de- litigation fendant had of the McDaniels at time it charge took of the defense of that case. think We that under the evidence the defendant at least had constructive Nancy notice that the claim of McDaniels original against plaintiff in upon suit a stat- utory cause of action and that defendant lia- was not indemnity ble policy under the terms of its to her fully such action. Also, that it was advised of its rights prior entering litigation into the and that it litigation intended to take only TERM, Mining & v. rights indemnity all

condition that under its by abundantly This is shown should reserved. Boggess, manager, letters written it to its resident original prior any appearance by suit, it in the it- be delivered sent letter to that effect to directing agent, Boggess, him it to its —sent question letter was to deliver it. But the whether vitally was the delivered or the had notice question contested of fact case. objection

Further has been made the defend pleaded plain improperly ant that the waiver was reply. practice condemned, tiff’s has been While such permitted been state. has still the courts of this [Ehrlich The Co., v. Life Ins. Aetna Granby Smelting S. 530;W. Moore App. Magruder, Co., 80 Mo. 86 ; Whiteside 364.] As this case to be should retried, is action, petition so amend to state its cause of reply. therein rather than appellant in learn- Counsel for this case with rare ing unexampled patience presented the have rights portentous of their in a monumental client printed pages. closely brief of It is not neces- sary proper determination of this case to follow throughout reasoning their cita- and the numerous questions in the tions All the raised of authorities. appellant’s carefully examined and brief have been except as herein stated. overruled, judg- that the what has been said it follows

From remanded, and the cause ment be reversed must having Gray, J., Cox, concurs. J., so ordered. sitting. counsel, been of REHEARING. MOTION FOR

ON argument of this the oral NIXON, P. J. At attorney respondent’s made the merits, cause on argument taking up his before oral contention 161 MISSOURI APPEAL REPORTS, Mining Co. v. appellant’s

merits that pliance brief was in com not drawn . App. with onr Enle No. 18 [156 Mo. 16, paragraphs S. W. two that rule material this connection are as follows: printed “All briefs shall be in not less than ten point (long type, primer) separate and shall contain apart argument or discussion of author- .from points ities, statement, in numerical order, of the together ap- relied on, with a citation of authorities propriate point. Any failing under each brief to com- ply may disregarded with by this rule the court.” appellant distinctly

“The brief filed shall separately allege the errors committed the trial permitted argu- court, and no will be at the reference specified, good ment to the errors not thus unless for cause shown this court shall otherwise direct.”

It will be noticed that each of paragraphs these penalty. paragraphs carries There are two other carry penalty. rule, same neither of which (156 App. 7), Rule 21 16, 122 S. W. is as fol “Penalty comply lows: for failure to with 12, rules any appellant 14, 15, any 16 and 18.—If civil cause comply provisions shall fail to with the of Rules 14, 15, 16 or the court, when the cause is called hearing, appeal, will dismiss the error, or writ of option respondent, or, at the continue the cause party argument at the cost of the in default. No oral failing comply will be heard from counsel with provisions pre 18', of Eule unless said counsel is doing opposing vented from so failure of counsel.” arguments. appearing The oral were heard it appellant’s court a hurried examination of compliance brief that it inwas substantial with the rule, but as we remember, it was understood that we ap would consider the matter later as to whether the pellant’s brief should receive consideration. After argument, respondent’s attorney oral filed “writ objections appellant’s reciting ten brief,” that such 213 1911. TEEM, Casualty Fidelity Co. & objections orally respond that the been and had made attorney of the court at said ent’s had leave obtained objections put writing and file same the time to his asking, specified, the reason clerk, with the for objec judgment the The written he that affirmed. attorney respondent’s do not ask tions filed appellant’s disregard brief, as contem court to quoted paragraphs plated by of the two the first appeal, not 18, Rule and do ask a dismissal of paper contemplated by re Rule In as that “objects merely spondent’s attorney to court this alleged considering any court errors of trial appellant’s statement, that brief for argument reason assignment no re errors, as contains ’’ stating quired by appellant had shown 18, Rule evidently had for the He no cause whatever omission. (quoted paragraphs above) in the two the second of provides paragraph that “no reference mind. That argument permitted errors not thus at the will be attorney specified.” Respondent’s not have did ask to contemplated appeal but Rule dismissed objections to in his written asked court affirm permits judgment. 18 Rule such Rule nor Neither respondent’s attorney desired to file If course. should, given judgment, he have motion to affirm days’ writing party of his five notice the adverse accompanied the no to file such motion and intention copy said [Rule 25, tice motion. with App. 17, 122 S. W. ' argue attorney permitted appellant’s appeared, prima his facie, this case because arrangement very carefully drawn and the brief was respondent’s planned so as to cause and discussion possible attorney the court least trouble phase turning given This court of the case. hearing practice of for itself the has established arguments af- and motions to motions dismiss arguments along merits, on the where firm with MISSOURI APPEAL Mining. Co. v. taking

briefs on the merits have filed, been whole matter under advisement at the So, same time. appearing appellant case, had been guilty palpable aof violation the court Rule permitted attorney appellant the learned for the argument, question his make and took the de the along fectiveness of the brief under advisement with respondent’s attorney the merits, with the idea if were right upon in his contention and we should so find a appeal more- careful the brief, examination of the contemplated by would be as dismissed Rule 21. We appellant’s did examine the brief with that in end prepared view and found that the brief was in sub compliance ap stantial with our rules. found in We pellant’s very complete brief a first statement of the pleadings, finally substance of the evolved, the issues provisions indemnity policy, of the the evidence history material for our consideration,- litigation, step preceded by topical heading —each respondent for the convenience of the and the court. page following “Ap On 36 we find the statement: pellant urges grounds presents as reversal, for following: court, Points and Authorities.” this is, Under “I. The Question.” Constitutional type, appear in Then, in black-face numerical order points general relied on for reversal under that heading, with authorities beneath. so And points other on for relied reversal. have rule We no requires “assignment of errors” in the sense appellant’s objections. simply used in Rule re quires separate apart briefs, contain argument and discussion of authorities, state points in ment, order, numerical relied to on, gether point. with a citation authorities under each appellant’s argument In brief, the and discussion of begins page heading authorities under large type: “Appellant’s Argument.” The conclu respectfully sion of the brief is as “We follows: con- TERM, pointed above, tend out that, because of errors plaintiff’s judgment in reversed.” favor should be appel object requiring primary of the rule attorney present his and not chaos lant’s order making respondent brief an intelli is to assist the ferreting gent reply and to assist the court in out pro questions It is more to be decided. intended respondent’s attor than tection to court acquainted ney presumed with he because to be well phases court knows the various while the case, absolutely nothing presentation and it on first about everything to intelli must find out about it order ap complained gently pass If of. errors pellant’s attorney permitted in brief com his mingle points reversal, and statement relied on argument, and discussion facts, and citation making appellate at court in will, of authorities, through tangled put way no would be the mass exists in this case. No such condition end trouble. carefully arranged skilfully prepared and The brief is assisting the court with the end in view of obvious appeal. investigation the of the merits of opinion, in this heretofore filed As stated the Supreme originally appeal take case, questions theory constitutional were on the Court printed both abstract and the briefs of involved. The Supreme parties Mis the entitled, “In Court the the clerk of Su and bear the file mark souri,” Supreme preme Later, certified Court Court. may appearing, well These facts case to this court. Supreme on such attitude of the Court be said question now have under consideration should as we determining sufficiency weight have some (228 [Supreme 73 S. 3, Court Rule briefs. provisions have that we 6), the same contains W. quoted In Rule 18. the late case of Wallace from our respondent in a Libby, 341, 132 W. S. judgment appeal or affirm dismiss motion to 161 MISSOURI Mining Co. v. ground, following:

set out as a fourth “Because appellant’s printed separate brief herein is not apart argument from the or discussion of the author ities, and does not contain a statement, in numerical points on, together order, of the relied awith citation point, required by of authorities under each as Rule appellant’s 15. Further, because brief not dis does tinctly allege separately committed errors required by passing trial court Rule 15.” In ground, Supreme on this “The said: fourth Court ground of the motion is not well taken. Much latitude very things, permitted must, nature of under argument Rule this court. Each brief and must depend largely person individuality prepared who them, makes and no fixed standard argu can be erected which each and all briefs ments are to be measured or tested. Just there is so compliance objection a substantial with Rule no successfully can be made to the form of the brief or argument.” enlightened the order of the policy This today. appe of the courts While rules l designed uniformity late courts which are to establish carry to a reasonable extent and to out that end faithfully should be observed, the refinement con by appellant’s tended for counsel is ultra technical. protection, oppression, appellate It is courts by salutary practice. seek to attain rules of From what said, has been the reason we did not advert to opinion appar in the matter heretofore is filed only insistency ent, and we so now do because of the appellant’s rehearing counsel. The motion for sitting. Gray, Cox, J., J., denied. concurs.

Case Details

Case Name: Royal Mining Company v. Fidelity Casualty Co.

Court Name: Missouri Court of Appeals

Date Published: Dec 4, 1911

Citation: 142 S.W. 438

Court Abbreviation: Mo. Ct. App.