Plaintiff James Wells and his four minor children were injured in a collision between Wells’ automobile and a truck being driven by defendant Lester Riley. Plaintiffs brought suit for personal injuries against defendant Riley and obtained a judgment in the sum of $2,000 in favor of plaintiff James Wells, and judgments in favor of each of the minor plaintiffs in the sum of $750. Subsequently, plaintiffs brought this action for a declaratory judgment, seeking to establish either: (1) that defendant Hartford was liable under the omnibus clause of its automobile liability policy covering the vehicle being driven by defendant Riley, or (2) that defendant Preferred Risk was liable under the uninsured motorist provisions of its automobile liability policy issued to plaintiff James Wells. A trial to the court resulted in a finding that defendant Preferred Risk was liable on its policy. Preferred Risk appealed to the St. Louis Court of Appeals, which affirmed the judgment. On application of defendant Preferred Risk, the appeal was ordered transferred here after opinion pursuant to the provisions of Mo. Const. Art. V, Section 10, V.A.M.S., and Rule 84.05, V.A.M.R. We are therefore required to decide the case as an original appeal, whatever the underlying reason for transfer, Fizette v. Phillips,
As material here, the facts are that the plaintiffs were involved, and presumably injured, in an automobile accident which took place in the City of St. Louis on September 13, 1964. Plaintiff James Wells was driving his own car, and his children were riding⅛ with him. Defendant Riley was driving a truck which belonged to his employer, a concern known as Arthur Enterprises, Inc. Mr. Wells filed suit to recover damages for his injuries and those of his children, originally against Arthur Enterprises; later, an amended petition was filed joining Mr. Riley as an additional defendant.
The original action was filed, apparently, on October 6, 1964. On November 30, 1965, plaintiff James Wells and his wife executed a document styled “Contract to Limit Recovery on Judgment to Specified Insurance Contract.” Obviously intended to bring plaintiffs and defendant Riley within the operation of Section 537.065, RSMo (1969), V.A.M.S., the contract recites that plaintiff Wells and his wife, “on behalf of themselves and their minor children * * * and in consideration of the sum of $1.00 and other valuable consideration paid to them by the defendant Lester Riley * * * do * * * agree that in thé event of a judgment against Lester Riley in this cause of action neither they nor any person, firm or corporation claiming by or through them will levy execution, *256 by garnishment or as otherwise provided by law, except against any insurer providing liability coverage or uninsured motorist coverage on either of the vehicles involved or the operators or persons therein * * It further recites that Wells and his wife agree to indemnify Riley in case of “action or cause of action” against him on behalf of the children. This contract is signed and sworn to by Wells and his wife.
On May 10, 1965, defendant Riley was made a party to the suit. On June 22, 1965, counsel for the plaintiffs sent a long letter to defendant Hartford’s office in St. Louis, summarizing the plaintiffs’ position with respect to the pending litigation. The letter recites the court in which the litigation is pending, the names of the parties, and the number assigned to the case. In general, the letter goes on to state counsel’s understanding that Hartford’s position was that its policy did not cover Riley at the time of the accident, and that Hartford had indicated it did not intend to appear. Counsel gave it as his view that Riley’s employer was not liable, but asserted that he did believe Mr. Wells “ * * * [has] a cause of action against Lester Riley individually and we * * * advise you and all other parties to whom this letter is directed, that it is our intention to pursue that cause of action * * * to judgment.” Mr. Ross went on to state his further view that if Hartford’s policy was not applicable, then it would appear that Preferred Risk’s was, and gave notice that a claim would be made on Preferred Risk if Hartford’s policy did not cover Mr. Riley at the time of the accident. Counsel stated in his letter that he was enclosing copies of both parties’ pleadings, and further offered “ * * * to furnish [Preferred Risk] copies of any other documents arising out of or in connection with this litigation which they may request.” Preferred Risk was asked to acknowledge receipt of the letter. It was stipulated at the trial of this case that Preferred Risk had received a copy of the letter.
On February 3, 1966, plaintiffs’ counsel gave notice to both Hartford and Preferred Risk that he intended to “request judgment” against defendant Riley only on February 23. Again it was stipulated that Preferred Risk received a copy of this letter. On February 23, 1966, plaintiffs reduced their claim against Mr. Riley to judgment. The trial court found — in this case — that the judgment was not a default judgment but that plaintiffs’ action against Mr. Riley was “handled as a jury waived case.” The trial court found further that both parties appeared (at the earlier trial) and both were represented by counsel. Parts of the record and files from the earlier case were offered and received in evidence. The trial court was at liberty to consult its own files to determine what happened in the first case, Arata v. Monsanto Chemical Company, Mo.,
The declaratory judgment action — the case now under review — was filed some time after the judgment had been taken in the tort case. We need not set out the content of the pleadings in this second suit at length; in substance, the plaintiffs pleaded the occurrence of the accident, the existence and, very briefly, the pertinent substance of the two insurance policies, the recovery of a judgment against Riley, and, in somewhat conclusory fashion, that one of the two insurers was liable over on the judgment. Hartford responded by admit *257 ting issuance of an insurance policy to the owner of Mr. Riley’s truck, and by denying that Riley was an omnibus insured. Preferred Risk admitted the existence of its policy but denied that Riley was an uninsured motorist, and further pleaded that plaintiffs had forfeited their uninsured motorist coverage by entering into a settlement with Riley in violation of the policy terms. In summary, the issues tendered, and the issues actually tried in the declaratory judgment action, were: (a) whether or not Riley was using the truck “with permission” of his employer, thus making him an omnibus insured under Hartford’s policy; and (b) whether or not Preferred Risk was liable on its uninsured motorist coverage if Hartford’s policy did not apply, in view of the document the plaintiffs had executed before their tort claim was litigated.
On the first of these issues, plaintiffs called defendant Riley as a witness. He testified that at the time of the accident he worked for a concern known as Arthur Enterprises, which operated motion picture theaters in the St. Louis area. Mr. Riley’s duties were to “ * * * work in the parking lots, and deliver stuff.” Sometimes, but not always, Mr. Riley used a company truck in the performance of his job. At the time the accident occurred, Mr. Riley was driving a dump truck which he and “ * * * about four or five others” used in their work. Riley occasionally used the truck for personal business, but it was kept at a parking lot near the Fox Theater, and ordinarily when Mr. Riley finished his work he left the truck there. The keys to the truck, and presumably to other vehicles, were left at a commercial filling station near or on the parking lot, and when the station was open Riley took the key to the truck when he needed it. However, if the station was locked Mr. Riley could not have got it, because “at that time I didn’t have no key to the station.” It was shown that on occasion, when the weather was inclement, Mr. Riley was allowed to take the truck home, “so I could get back to work and get the the lots cleaned.” Mr. Riley did not regularly keep the key to the truck with him; he stated positively that “[t]he only time I would have the key [was] when I asked for the truck and he [his superior] would let me have it.” Riley “ * * * didn’t just regular keep the key.” Mr. Riley further testified, in substance, that he had been given permission to use the truck for personal business, but he had also been refused permission several times, and he had been told specifically that “ * * * I couldn’t use it for running around on the street, to use it as a pleasure car or something.”
The accident in question occurred on Sunday morning, about 9:30 A.M. Mr. Riley was “coming from home, going to pick up a ladder around Cote Brilliant (sic).” Mr. Riley had used the ladder, which belonged to his employer, to help a fellow employee paint his house. The substance of Mr. Riley’s testimony was that he had taken the ladder without permission of anyone in authority, and he had not asked permission to take the truck, because when he left with the truck on Saturday morning, “[t]here was no one there for me to ask.” Riley also said that he had an automobile of his own at the time, but had no insurance on it, and he testified without objection that “they taken my [driver’s] license,” because he was unable to comply with the requirements of the Safety Responsibility Law, Chapter 303, RSMo (1969). Defendant Hartford also produced witnesses on the issue of Riley’s permission to use the truck; in substance, their evidence was that Riley did not have continuous permission to use the vehicle for personal purposes, and that he had not obtained express permission to use it on the day he took it, Saturday before the accident on Sunday.
As. for the other litigated issue — Preferred Risk’s liability if Hartford’s policy did not apply — the court received a copy of Preferred Risk’s policy in evidence, the contract signed by Mr. Wells and his wife was received, and Mr. Wells testified that he had signed it. Mr. Wells was then *258 asked: “Q. Did you receive a dollar or any other money or anything to your knowledge in return for signing this document?” He answered, without objection, “I did not.” Further testimony on Mr. Wells’ part tended to show that he understood the nature of the contract when he signed it. It was stipulated, as we have said, that Preferred Risk received copies of the correspondence addressed to Hartford, and the trial court’s files and record in connection with the tort case were offered. The trial court refused the offer of the entire file, but suggested that if counsel would indicate the parts of the record of which he wanted notice taken, notice would be taken directly from the file. ' This was done. Generally, this is the factual background of the appeal, and upon this evidence the trial court filed a memorandum opinion holding in substance that Hartford was not liable but Preferred Risk was.
On appeal, both in the St. Louis Court of Appeals and here, Preferred Risk has briefed and argued three points. Hartford’s policy was admittedly in force and admittedly covered the vehicle which Mr. Riley was driving at the time of the accident. Part III of the “Insuring Agreements” of that policy contains a so-called omnibus provision which, as material on this appeal, reads: “ * * * The unqualified word ‘insured’ includes * * * (2) under coverages A [the bodily injury coverage] and C, any person while using an owned automobile * * * provided the actual use of the automobile is by the named insured or with his permission * * *.” The appellant’s first point is that the trial court erred in finding that Riley was uninsured because the evidence clearly proved that he had implied permission to use the truck and he was therefore an insured under the omnibus clause of Hartford’s policy, quoted above.
This point need not detain us long. Our courts have, of course, recognized that permission to use a vehicle within the meaning of the omnibus clause may be either express or implied, Hartford Accident and Indemnity Company v. List, Mo.App.,
Preferred Risk also vigorously argues that since it was neither Mr. Riley’s insurer nor his indemnitor, the notification that an action was pending between plaintiffs and Mr. Riley could not serve to bind it to the outcome of that action, and therefore the trial court erred in holding it bound by the judgment therein entered. Plaintiffs answer by saying that Preferred Risk, having been given notice of the pen-dency of the action, and having been afforded an opportunity to appear and participate in the proceedings, is now bound by the judgment entered in that action.
We agree with the plaintiffs. Applying the principles of collateral estop-pel, a number of courts, including one of our own, have held that an uninsured motorist carrier is estopped to relitigate the issues necessarily decided in an action brought by its insured against an uninsured motorist, if the uninsured motorist carrier has been given full and adequate notice and an opportunity to intervene and defend when the insured litigates the issues of liability and damages with the uninsured motorist tort-feasor. State ex rel. State Farm Mutual Automobile Insurance Company v. Craig, Mo.App.,
Even though Mr. Riley was not in default in the first action, Preferred Risk had the right to intervene upon application timely made, at least for the purpose of assuring itself that the issues of liability and damages were fully litigated, and for the purpose of assuring itself that the estoppel of the judgment would be mutual if there was a finding for the defendant. State ex rel. State Farm Mutual Automobile Insurance Company v. Craig, supra,
Preferred Risk further suggests that plaintiffs should have been required to prove Mr. Riley’s negligence, their damages, and Mr. Riley’s uninsured status in a single action. Joinder of the uninsured motorist with the uninsured motorist carrier in a single action is not permissible under the present joinder statute, State ex rel. Campbell v.
James,
Mo.,
Finally, Preferred Risk contends that whether or not Mr. Riley is an uninsured motorist, plaintiffs are excluded from coverage because plaintiff James Wells entered into a contract in violation of the terms of his policy. In support of this argument, Preferred Risk calls attention to that part of its policy which excludes the uninsured motorist coverage if the “ * * * insured, his legal representative or any person entitled to payment under this part shall, without written consent of the company, make any settlement with * * * any person or organization who may be legally liable,” and cites Kisling v. MFA Mutual Ins. Co., Mo.App.,
For the purposes of this opinion, we need not sort out, consider and rule on all these various contentions, for in any event we have concluded that, on the record presented, no consideration was given for the Wells’ promise to forbear enforcement of any judgment rendered against Mr. Riley’s assets, and the contract was unenforceable. It has been stated over and over again that consideration sufficient to support a simple contract may consist of a detriment to the promisee or a benefit to the promisor, and it is sufficient if either exists. Thompson v. McCune,
For the reasons indicated, the judgment is affirmed.