author: RUDDY, Judge.

text:
    Carney V. FORSTHOVE and Joe Forsthove d/b/a Forsthove Brothers and Farm Bureau Mutual Insurance Company, Plaintiffs, Rupert N. Marks, Respondent, Defendant and Cross-Claim Defendant, v. HARDWARE DEALERS MUTUAL FIRE INSURANCE COMPANY, Appellant, Defendant and Cross-Claimant.
    No. 32453.
    St. Louis Court of Appeals. Missouri.
    April 18,1967.
    Motion for Rehearing or for Transfer to Supreme Court Denied May 18, 1967.
    Application to Transfer Denied July 10, 1967.

      Ben Ely, Ely & Cary, Hannibal, for def endant-app ellant.
    J. Andy Zenge, Jr., Canton, for plaintiffs.
    Richard J. De Coster, Canton, Thomas R. McGinnis, St. Louis, Carson, Inglish, Monaco & Coil, Jefferson City, for defendant-respondent.
   RUDDY, Judge.

This appeal arises out of an interpleader action wherein Carney v. Forsthove and Joe Forsthove (hereinafter referred to as the tort-feasors) and Farm Bureau Mutual Insurance Company, tort-feasors’ insurer, were plaintiffs and Hardware Dealers Mutual Fire Insurance Company (hereinafter referred to as Hardware Dealers) and Rupert N. Marks (hereinafter referred to as Marks), Hardware Dealers’ insured, were joined as defendants. The trial court sustained a motion of Marks to dismiss the interplea and cross-claim of Hardware Dealers and to pay to movant the balance of the interpleaded fund held in the Registry of the Court. Hardware Dealers appealed.

We must look to the pleadings for all of the facts. The facts, as gleaned from the allegations contained in the bill of inter-pleader, the answer of Marks and the answer and cross-claim of Hardware Dealers, show that Hardware Dealers had issued to Marks a policy of liability insurance covering an automobile in which the wife of Marks was riding at the time said automobile was involved in a collision with a motor vehicle operated by one of the tort-feasors. The wife of Marks sustained injuries in this collision from which she died. The liability insurance policy issued by Hardware Dealers to Marks contained certain medical payment provisions. Under these provisions Hardware Dealers agreed to pay all reasonable medical expenses incurred within one year from date of accident. The “named insured” included the wife of the insured and the policy provided that “the term medical expenses included funeral expenses.” The liability insurance policy of Hardware Dealers also included a provision that if payment be made for medical expenses as defined in the policy Hardware Dealers should be subrogated to any right of the person to whom such payment was made against any third party causing such injuries or death and that such payee should execute to the Hardware Dealers all necessary assignments and transfers of such subrogated rights. As stated heretofore, the wife of Marks was killed as a direct result of a collision with a motor vehicle owned and under the control of the tort-feasors. The funeral bill of the wife of Marks amounted to $1500 and Marks made a claim against Hardware Dealers under the medical expense clause of the policy for that amount. Hardware Dealers paid to Marks the sum of $1500 and demanded that he execute and deliver to it a written assignment and subrogation receipt transferring and assigning to it the rights he had against the tort-feasors. This demand was made pursuant to the terms of said subrogation provision, but Marks failed and refused to make any such assignment.

Marks instituted a cause of action in the Circuit Court at Canton, Missouri, against the tort-feasors under the Missouri Wrongful Death Act to recover for the death of his wife. The Farm Bureau Mutual Insurance Company was the liability insurance carrier on the motor vehicle involved in the accident which was owned and controlled by the tort-feasors at the time of said accident. The Farm Bureau Mutual Insurance Company as the insurer of the tort-feasors entered into a compromise settlement with Marks wherein it was agreed that Marks should receive $19,-500 in full settlement :>f the lawsuit and of any and all claims which he had or might have had growing out of his wife’s death. Hardware Dealers served a lien notice upon the tort-feasors and the Farm Bureau Mutual Insurance Company claiming certain subrogation rights and that it was entitled to $1500 of any money or monies which the tort-feasors and their insurer became obligated to pay or agreed to pay to the said Marks.

The tort-feasors and Farm Bureau Mutual Insurance Company alleged in their bill of interpleader that it has been impossible for them to obtain a release from Marks without paying the full sum of $19,500 and that if such payment is made Hardware Dealers will assert an additional claim for $1500 against them. As a result of the impasse reached, because of the divergent positions taken by Marks and Hardware Dealers, this bill of interpleader was filed by the tort-feasors and their insurer wherein $19,500 was paid into the Registry of the Court. Plaintiffs in their bill of inter-pleader pray that Marks and Hardware Dealers be required to interplead and that the court determine which of the defendants is entitled to receive payment of the $1500.

Marks, in his answer to the bill of inter-pleader, inter alia, alleged that he agreed to accept the sum of $19,500 “ * * * in full settlement of all claims which said Rupert M. Marks * * * has or might have against * * * ” said tort-feasors and their insurer.

Hardware Dealers, in its answer to the bill of interpleader, inter alia, alleged the following:

“The above mentioned terms of said policy and the demand for payment and the receipted payment thereunder constituted an equitable assignment to this defendant of the claim of said Rupert M. Marks against the plaintiff up to the said sum of One Thousand Five Hundred and No/100 ($1,500.00) Dollars, and this defendant became and is sub-rogated to the rights of said Rupert M. Marks against the plaintiff to the extent of the said One Thousand Five Hundred and No/100 ($1,500.00) Dollar payment.”

In Count I of its cross-claim Hardware Dealers alleged that if the court should hold that it is not entitled to impress any lien or constructive trust upon the fund in court, that it is “ * * * entitled to restitution on said sum of One Thousand Five Hundred and No/100 ($1,500.00) Dollars so paid by it * * * ” to Marks as money had and received.

In Count II of its cross-claim Hardware Dealers alleged that it has “ * * * done and performed all things to be done and performed by it under the terms of the said contract” of insurance; and by reason of the breach of said contract by Marks it has been injured and has suffered damages in the sum of $1500 and prays judgment for this amount in the event the trial court should hold that it is not entitled to a lien upon the fund paid into the court.

After Hardware Dealers’ cross-claim was filed, Marks filed a motion “ * * * to dismiss the cross-claim of Hardware Dealers Mutual Fire Insurance Company * * *.” The ground given by Marks in said motion is that the cross-claim fails to state a claim for which relief can be granted. In the motion to dismiss Marks asked, in the alternative, for a judgment in favor of him directing

“ * * * the Clerk of this Court to pay out the balance of the money held in the Registry of this Court, heretofore deposited by the plaintiffs in this action, for the reason that under the law and the pleadings filed herein, defendant Rupert M. Marks * * * is entitled to all of said money.”

The trial court sustained said motion and dismissed both counts of the cross-claim of Hardware Dealers with prejudice for the reason that said cross-claim failed to state a claim for which relief could be granted and .entered judgment in favor of Marks "* * * as prayed for in the separate answer of said Rupert M. Marks * * * ” and ordered the balance of the funds held in the Registry of the Court paid to Marks. It appears that at the time this order and judgment was entered only $2000 of the $19,500 paid into the Registry of the Court remained for distribution.

We point out that the liability insurance policy issued by Hardware Dealers to Marks which contained the medical payment provision referred to herein was not filed as an exhibit in the interpleader action, nor was the petition filed by Marks against the tort-feasors under the Missouri Wrongful Death Act filed in this action as an exhibit. We agree with the statement of Hardware Dealers in its brief that the present state of the record is most unsatisfactory for the purpose of presenting to this court the issues here involved. However, as Hardware Dealers points out, it is its desire to have this case decided on the merits and we think the record discloses sufficient facts to understand the positions taken by the respective parties.

It is the contention of Marks that the subrogation provision of the policy issued by Hardware Dealers to him involved a purported assignment and transfer to Hardware Dealers of his cause of action for personal injury against third party tort-feasors and that such is prohibited by the law of this state, citing Travelers Indemnity Co. v. Chumbley, Mo.App., 394 S.W.2d 418. Marks relies on the reasoning of the rule announced in the Chumbley case, that even though the cause of action for personal injuries may survive, still such action may not be assigned either in whole or in part prior to judgment for reasons of public policy and contends that the fact that the purported assignment in the instant case was not used until after the money had been paid in the court or the fact that the cause of action in the instant case was for wrongful death, rather than for personal injury, does not distinguish the present case from the Chumbley case.

Hardware Dealers in its brief admits that the trial court’s decision was based entirely on the opinion rendered in Travelers Indemnity Co. v. Chumbley, supra. After paying great respect to the author of the opinion and the court out of which it came, a tribute in which we join, it contends that the reasoning is anachronistic and the conclusion reached in the opinion is unsound in holding that a cause of action for a personal tort could not be assigned. Hardware Dealers calls upon us to adopt the rule followed in some jurisdictions, which hold that there is no sound reason of public policy prohibiting the making of subrogation contracts and rejecting the supposed doctrine of the common law forbidding the assignment of claims for personal torts. In support of its effort to have us reject the reasoning and the rule set out in the Chumbley case, Hardware Dealers has cited the following cases: Davenport v. State Farm Mutual Auto Insurance Company, 81 Nev. 361, 404 P.2d 10; Damhesel v. Hardware Dealers Mutual Fire Ins. Co., 60 Ill.App.2d 279, 209 N.E.2d 876; Michigan Medical Service v. Sharpe, 339 Mich. 574, 64 N.W.2d 713; Remsen v. Midway Liquors, Inc., 30 Ill.App.2d 132, 174 N.E.2d 7; Smith v. Motor Club of America Ins. Co., 54 N.J. Super. 37, 148 A.2d 37. We have examined the aforesaid authorities cited by Hardware Dealers and many other authorities in our independent research. We need not comment on the cases of these other jurisdictions which have adopted a rule contrary to ours because we feel bound to follow the reasoning and rule announced in the Chumbley case for the reasons hereinafter noted. If the reader is interested in the rule and cases in other jurisdictions as to the assignability of claims for personal injury or death he is referred to the annotation on that subject in 40 A.L.R.2d 500-519 and Vol. 4 Later Case Service for 32-48 A.L.R. 2d.

In the Chumbley case Travelers, the insurer, filed an action against its insured and the tort-feasor to recover under the subro-gation provisions of its policy the medical payment of $500 it made to its insured. Chumbley, Travelers’ insured, instituted a personal injury action against Losinsky, the tort-feasor, which was settled and the lawsuit was dismissed by Chumbley with prejudice pursuant to stipulation. The subrogation clause of the policy in question provided that “ * * * the insured shall execute and deliver instruments and papers and do whatever else is necessary to secure such rights * * * ” the insured shall have against the tort-feasor. The opinion held that Travelers’ status, in legal effect, was that of an assignee of a portion of Chum-bley’s cause of action for personal injury. In discussing the question as to whether Chumbley’s right to recover against Losin-sky for medical expenses, which the court said was embraced in, and was a part of, Chumbley’s cause of action for personal injuries, was assignable, the Court said: (394 S.W.2d 1. c. 423)

“ * * * Although there is no specific admission by plaintiff Travelers that a cause of action for personal injury is not assignable in Missouri, there is no contention to the contrary by counsel, and their earnest effort to persuade us that a claim for medical expense ‘is separate and apart from a bodily injury claim’ strongly suggests recognition of the non-assignability of a cause of action for personal injury. However, we hasten to add that we rest our conclusion to that effect (i. e., that a cause of action for personal injury is not assignable) upon the case law in Missouri and not upon so frail a foundation as the implied concession of counsel. If (as we have determined) Chumbley’s cause of action for personal injury, which embraced and included his right to recover his medical expenses, was not assignable, it necessarily follows that the purported assignment of such right of recovery by paragraph IS of the policy ‘conditions’ was of no validity and effect. * ⅛: ‡»

The court in footnote 12 cited the following cases in support of the above statement: Kramer v. Laspe, Mo.App., 94 S.W.2d 1090, 1094(7); Beechwood v. Joplin-Pittsburg Ry. Co., 173 Mo.App. 371, 375-377, 158 S.W. 868, 869-870(2); McLeland v. St. Louis Transit Co., 105 Mo.App. 473, 473-178, 80 S.W. 30, 31(1); Schubert v. Herzberg, 65 Mo.App. 578, 584; and, Freeman v. Berberich, 332 Mo. 831, 847, 60 S.W.2d 393, 401, 1. c. 423. The court held that the nonas-signability of Chumbley’s cause of action for personal injury, which embraced and included his right to recover his medical expenses, was dispositive of the appeal as to Losinsky and, therefore, affirmed the trial court’s action dismissing Travelers’ first amended petition as to both defendants. We note that the Chumbley opinion does not directly say that the rule is bottomed on public policy.

We realize that we are not absolutely bound to follow the reasoning and the rule followed by the Springfield Court of Appeals in its opinion in the Chumbley case if in fact it is not in accord with the case law of this state, especially as ruled in the decisions of the Supreme Court, of this state. If the case law decided by the Supreme Court of this state supports the rule followed in the Chumbley case then we are absolutely bound by the rule followed in that case. If the rule finds no support in the Supreme Court decisions and only finds support in the decisions of the Courts of Appeal of this state, then the rule is not binding on this court and, at most, these decisions are only persuasive.

We admit that in a number of cases decided by the Supreme Court the court said that the test of assignability of causes of action is whether or not the cause of action survived to the personal representative. However, all of the cases in which this-declaration has appeared have arisen from torts affecting property and as far as we can determine the test of survivability has. never been applied in this state in a case arising from a tort based upon wrongful or negligent acts resulting in personal injury.

While we have been unable to find a case decided by the Supreme Court of this state, with the precise factual situation appearing" in the Chumbley case and in the instant case under review, we are not without Supreme Court authority on the question.

In the case of Remmers v. Remmers, 217 Mo. 541, 1. c. 560-561, 117 S.W. 1117, 1. c. 1122, decided March 30, 1909, which was an action for conspiracy to cheat and defraud plaintiff of property, the court said:

“The rule of the common law that no cause of action in tort, whether to person or property, could be assigned, has been very much relaxed, and the distinction is now marked between rights of action for tort affecting the person or family relations, and those affecting property.
“ * * * ‘It is now the general American doctrine that all causes of action arising from torts to property, real or personal — injuries to the estate by which its value is diminished — do survive and go to the executor or administrator as assets in his hands. As a consequence such choses in action, although based upon a-tort, are assignable.’ ” (Emphasis ours.)

It will be noted that the above merely holds that torts to property, real or personal, are assignable, but infers that they are to be distinguished as to assignability from rights of action for torts affecting the person.

In the case of Freeman v. Berberich, 332 Mo. 831, 60 S.W.2d 393, the Supreme Court pointedly said that a tort action based upon wrongful or negligent acts resulting in personal injuries was not assignable. The action was for damages for personal injuries sustained by plaintiff when the automobile in which he was riding, driven by one of the defendants, collided with a truck owned by defendant Berberich. In a discussion on whether the “dead man’s statute” disqualified one defendant from testifying when. the agent of the co-defendant was dead, the Court said at 1. c. 401,

“ * * * This idea is further emphasized by the amendment of 1887 disqualifying the other party to the contract or cause of action from testifying ‘in favor of any party to the action claiming under him’ and also disqualifying a party to the suit whose action or defense is derived from one subject to the disqualification. These provisions would seem to indicate that the cause of action spoken of there, at least, is an assignable or transmissible cause of action, and not a pure tort based upon wrongful or negligent acts resulting in personal injuries, which is not assignable. See Remmers v. Remmers, 217 Mo. 541, loc. cit. 561, 117 S.W. 1117; Snyder v. Railroad [Wabash, St. L. & P. Ry. Co.], 86 Mo. 613; Beechwood v. Railroad [Joplin-Pittsburg Ry. Co.], 173 Mo.App. 371, 158 S.W. 868, and casés cited. * * * ” (Emphasis ours.)

The case of State ex rel. Park National Bank v. Globe Indemnity Co., 332 Mo. 1089, 61 S.W.2d 733 (1933) was a suit upon a notary public’s bond. The suit was brought by the State at the relation and to the use of the Kansas City Title and Trust Company and later was assigned to the Park National Bank. The defendants contended that the cause of action was not assignable by the Kansas City Title and Trust Company. The Supreme Court held that the right of action on a notary’s bond of the Kansas City Title and Trust Company was assignable. In approving the assignability of the claim the Supreme Court quoted approvingly from 2 Ruling Case Law. It said: (1. c. 736)

“The matter is summed up as follows, in 2 R.C.L. 596, § 3: ‘Although at common law no action ex delicto in which the appropriate plea was “not guilty” survived, the early statute of 4 Edw. Ill, c. 7 gave a remedy to executors for a trespass to the personal estate of their testators, which remedy by equitable construction was extended to administrators, and ultimately gave rise to the principle that choses in action for torts may be assigned, provided they arise from wrongs causing injury to real or personal property, or from frauds, deceits and other torts by which an estate, real or personal, has been injured, diminished, or damaged. This class of assignable choses in action for torts includes rights of action to recover for the wrongful taking and conversion of personal property. The assignability of things in action is now the rule and non-assignability the exception. Practically the only classes of choses in action which are not assignable are those for torts for personal injuries, and for wrongs done to the person, the reputation, or the feelings of the injured party, and those based on contracts of a purely personal nature, such as promises of marriage.’ See, also, 5 C.J. 886-890, §§ 52-55.” (Emphases ours.)

It is clear beyond doubt that the Supreme Court in quoting approvingly from the rule stated in 2 Ruling Case Law and in its own noted exceptions to the general statement contained in the rule, has held that choses in action for torts for personal injuries, actions based upon a purely statutory right conferred on one who belongs to a particular class and is in the nature of a personal privilege, and actions for fraud or deceit in which the wrong is regarded as one to the person, are not assignable.

Another case, Beall v. Farmers’ Exchange Bank of Gallatin, Mo., 76 S.W.2d 1098 was a suit on notes in which it was alleged that the cashier of the defendant bank had practiced a fraud on the Winston Bank at Winston, Daviess County, Missouri. Defendants contended that the Winston Bank had no right to assign the cause of action to the plaintiff because it was an action for fraud and deceit which they contended was not assignable. The Supreme Court held that the contention that the action was not assignable was without merit and stated that the rule applicable was approved and applied recently by the Supreme Court in the case of State ex rel. Park Nat. Bank v. Globe Indemnity Co., 332 Mo. 1089, 61 S.W.2d 733. The court said 1. c. 1099, 61 S.W.2d 1. c.:

“ * * * In that case the following passage from 2 R.C.L. 596, § 3, was approved :
“ ‘Practically the only classes of choses in action which are not assignable are those for torts for personal injuries, and for wrongs done to the person, the reputation, or the feelings of the injured party, and those based on contracts of a purely personal nature, such as promises of marriage.’ ”

Rather than paraphrase we have quoted quite fully from the aforementioned Supreme Court cases because of Hardware Dealers’ insistence that we not adhere to the rule of nonassignability of personal injury actions. The aforesaid quotations from the Supreme Court cases show beyond question the position of the Supreme Court on the rule, a position we must follow. In these cases, while the Supreme Court has steadfastly held to the rule of nonassignability of personal injury actions based on a tort, it has not discussed its reason or reasons for so holding. Obviously, its reason for its pronouncement of the rule is not the non-survivability of personal injury actions after the death of the injured party, because, since 1907 (Laws of Missouri 1907, page 252, now part of Section 537.020(1) RSMo 1959, V.A.M.S.) causes of action for personal injury, other than those resulting in death, where suit had been brought by the injured party during his lifetime, after his death survived to the personal representative of the injured party. All of the Supreme Court cases we have cited were decided since 1907. What then is the reason for nonassignability of personal injury actions? It must be because of consideration of public policy. It was so held in the case of Beechwood v. Joplin-Pittsburg Ry. Co. (1913), 173 Mo. App. 371, 158 S.W. 868. In that case plaintiff, C. E. Beechwood, instituted suit against defendant to recover damages for personal injuries. Subsequently plaintiff was adjudged a bankrupt and the trustee of his bankrupt estate filed a motion in his suit for damages asking to be substituted as party plaintiff in place of said Beechwood. The trial court sustained this motion but on appeal the court found that the trial court erred in sustaining the motion to substitute the trustee in bankruptcy as party plaintiff. The court on appeal held that it is well established that a cause of action for personal injury is not assignable and when the injuries are sustained by the bankrupt prior to the bankruptcy the cause of action does not vest in the trustee in bankruptcy of the injured party. Among the cases cited in support of this was Schubert v. Herzberg, 65 Mo.App. 578. In the Beechwood case the court also said:

“ * * * See, also, North Chicago Street R. Co. v. Ackley, 171 Ill. 100, 49 N.E. 222, 44 L.R.A. 177, and the annotation thereto, where a large number of cases from all the states upholding this doctrine is collected.”

The court then said (1. c. 870):

“There is every reason for holding that a cause of action for personal injuries, where the gist of the damages recovered is physical pain and mental anguish, should not be the subject of barter or trade, or a matter of profit to the creditors of the injured party. With reference to the very matter now at issue, it is said in Sibley v. Nason, 196 Mass. 125, 130, 81 N.E. 887, 889, 12 L.R.A. (N.S.) 1173, 124 Am.St.Rep. 520, 12 Ann.Cas. 938, as follows: ‘It is not, and never has been, the policy of the law to coin into money for the profit of his creditors the bodily pain, mental anguish, or outraged feelings of a bankrupt. None of the federal or English bankruptcy acts, nor our own insolvency statutes, have gone to that length.’
***** *
“The question presented by this appeal as to what effect a statute similar to our Section 5438, (Laws of Missouri 1907, p. 252, Section 537.020 RSMo 1959) providing for the survival to the personal representative of causes of action for personal injuries on the death of the person injured, has as to making such causes of action assignable, and therefore vesting in the trustee in bankruptcy, has been considered by the courts of other states, and answered in the negative. The Illinois case of North Chicago Street R. Co. v. Ackley, (supra) holds that a statute of that state more comprehensive than ours in providing for the survival of such causes of action, does not have the effect of making causes of action for personal injuries assignable, or of vesting title to the same in a trustee in bankruptcy. The court there remarked: ‘On grounds of public policy, the sale or assignment of actions for injuries to the person are void. The law will not consider the injuries of a citizen, whereby he is injured in his person, to be, as a cause of action, a commodity of sale.’ * * * ”

The court in the Beechwood case also quoted from the case of Weller v. Jersey City, H. & P. St. Ry. Co., 68 N.J.Eq. 659, 61 A. 459, to the same effect.

In the case of Schubert v. Herzberg, 65 Mo.App. 578, cited in the Beechwood case, the court said:

“ * * * Unless otherwise provided by statute, it is everywhere conceded that a mere claim of damages for personal tort is, at law, nonassignable. It is only when such a claim becomes merged in a judgment, establishing the right to a definite amount that it can be the subject of legal sale and transfer. * * * In so far, then, as the assignment pretended to transfer the cause of action, it was clearly of no validity. * * * ”

This court in the case of Kramer v. Laspe, (1936) Mo.App., 94 S.W.2d 1090, 1094, said:

“Whether the assignment of the judgment herein be viewed as an assignment of plaintiff’s cause of action or not is of no moment, since it is no longer open to question but that a cause of action for personal injuries is not assignable in this state, and any such attempted assignment is invalid. ‘Unless otherwise provided by statute, it is everywhere conceded that a mere claim of damages for a personal tort is, at law, unassignable. It is only when such a claim becomes merged in a judgment, establishing the right to a definite amount that it can be the subject of legal sale and transfer. * * * In so far, then, as the assignment pretended to transfer the cause of action, it was clearly of no validity. * * * i »>

In addition to the Illinois case of North Chicago Street R. Co. v. Ackley, supra, cited and quoted from approvingly in the Beechwood case, we find support for the rule under review in the very recent case (1966) of Harleysville Mutual Insurance Company v. Lea, 2 Ariz.App. 538, 410 P.2d 495. In that case the insurer brought action against the insured for the amount of medical payments which insurer had made to insured on the ground that the insurer was entitled to reimbursement under sub-rogation clauses of the policy and the receipt signed by the insured. The insured entered into a settlement with the tort-feasor and refused to reimburse the insurance company to the extent of the medical benefits previously paid to the insured by the insurer. In a well written opinion that indicated much research the court said: (1. c. 498)

“At common law, a chose in action for personal injuries could not be assigned and would not survive. Most writers objected to the assignability because they felt that unscrupulous people would purchase causes of action and thereby traffic in law suits for pain and suffering. Rice v. Stone, 83 Mass. 566 (1861). * * * »

The court held that the view that a statute which provides for the survival of a cause of action of necessity authorizes the assignment of said cause has been rejected in a number of jurisdictions, citing cases. The court then said:

“ * * * We feel and therefore hold, that the better reasoned rule is that even though a cause of action for personal injury may survive, an action still may not be assignable either in whole or in part prior to judgment. * * * ”

Thereafter the court quoted approvingly from the case of Travelers Indemnity Company v. Chumbley, Mo.App., 394 S.W.2d 418. The court then said: (1. c. 499)

“Although the historical reasons given for the non-assignment of a personal injury claim have been based mostly on the nonsurvivability of the cause of action, we believe that the non-assign-ability rule standing alone has much support in public policy. * * * ”

Supporting the rule followed in the Chumbley ca^e, in addition to the aforesaid authorities, are the cases of City of Richmond v. Hanes, 203 Va. 102, 122 S.E.2d 895; Bethlehem Fabricators v. H. D. Watts Co., 286 Mass. 556, 190 N.E. 828, 93 A.L.R. 1124; Goldfarb v. Reicher, 112 N.J.Law 413, 171 A. 149; and Weller v. Jersey City, H. & P. St. Ry. Co., 68 N.J. Eq. 659, 61 A. 459.

We reject the rule urged by Hardware Dealers that whether a cause of action for personal injury is assignable depends solely upon whether it survives and adopt the rule that such causes of action may not be assigned prior to judgment for reasons of public policy. We think the case law as given to us by the Supreme Court of this state dictates this course, a course we would willingly follow even though there were no such case law. We think the reasons for the applicability of such a public policy are as fundamental and as necessary today as in the days of the origin of this rule. We do not think economic or social changes since its origin make the reasons for this humane rule anachronistic.

However, Hardware Dealers, clinging to its concept of what the rule should be, says that the Missouri cases relied on by us and in the Chumbley case were decided prior to 1947, (which is true) and that prior to 1947 only causes of action for personal injury survived the death of the victim, “ * * * if, but only if, the victim before his death had brought suit and the suit was actually pending at the moment of his death. Laws 1907, p. 252. * * * ” Hardware Dealers then points out that in 1947 the Legislature adopted the present form of Section 537.020 RSMo 1959, V.A.M.S. (Session Acts 1947, Vol. 11, p. 225.), which provided that causes of action for personal tort survived the death of the tort-feasor against his personal representative and also, after the death of the victim, survived to his personal representative, whether or not action had been instituted hy the victim before his death. As will he recalled we pointed out that since 1907 only causes of action for personal injury where suit had been brought by the injured party during his lifetime survived to his personal representative after his death. Hardware Dealers contends that the 1947 Legislation constituted a declaration by the Legislature that modern public policy is not opposed to the assign-ability of such a cause of action. We do not agree with Hardware Dealers in this contention. The Legislature made no declaration as to assignability of personal injury actions and consequently did not declare any public policy as to these actions. We agree with Marks’ position that the amendment to Section 537.020 in 1947 only added to the situations and conditions of survivability and that it did not initially provide for survivability. This had been done initially in 1907 (Laws of Missouri 1907, p. 252). As we have pointed out heretofore in the Beechwood case, reference was made to the case of North Chicago Street R. Co. v. Ackley, (supra) where the statute involved was more comprehensive than ours in providing for the survival of causes of action for personal injuries and in that case, despite the broadened scope of survivability, the court held that causes of action for personal injury were not assignable.

Hardware Dealers in another contention assumes a different tack. It says in the instant case, unlike the Chumbley case, we are not dealing with a transfer of the power to sue a tort-feasor, pointing out that the suit has already been ended and that the third party tort-feasor has paid the money into the Registry of the Court. It says that a judgment actually rendered for personal tort may be assigned by the judgment plaintiff to a stranger and that such an assignment is valid even though it is actually executed before the rendition of the judgment. It says the present case is completely analogous to the contention submitted. It is true that some Missouri cases hold that a judgment for personal tort is assignable. The obvious answer to this contention of Hardware Dealers is that there was no judgment and that there was no purported assignment of any judgment or of any money which had been paid into the Registry of the Court. The sub-rogation provision in the policy does not attempt to assign a judgment or the proceeds from a settlement. The provision merely attempted to assign a cause of action for personal injury which we have found to be nonassignable.

In another contention Hardware Dealers urges that the present case deals with a cause of action for wrongful death which is more closely analogous to a cause of action for property damage than to one for personal injury. In the case of Hildreth v. Key, Mo.App., 341 S.W.2d 601, the court held that burial, hospital, medical and ambulance expenses incurred in a wrongful death action were general damages. Therefore, funeral expenses can not be categorized as analogous to an action to recover special property damage. We admit that causes of action for property damages have been assignable in Missouri. General Exchange Ins. Corp. v. Young, 357 Mo. 1099, 212 S.W.2d 396. A cause of action for wrongful death conferred by the statute sounds in tort and it is well settled that the cause of action or right to maintain an action and recover for a wrongful death of any person is a single right and the right is vested in specific beneficiaries. The cause of action for wrongful death accrues and passes in accordance with the statute. Spencer v. Bradley, Mo., 351 S.W.2d 202. In the absence of statutory permission a cause of action for death by wrongful act is not assignable and it has been held that prior to judgment the beneficiary’s claim for damages is a mere expectancy, or inchoate right, and not a debt and not assignable. 6 C.J.S. Assignments § 33, p. 1081; Clar v. Dade County, Fla.App., 116 So.2d 34; Liberty Mutual Ins. Co. v. Lockwood Greene Engineers, Inc., 273 Ala. 403, 140 So.2d 821. Also see other cases in 40 A.L. R.2d 500, 514, Section 9, wherein appears the following: “It seems well settled that, absent contrary statutory provisions, an individual who, under the applicable death statute, is authorized to bring an action to recover for a death may not assign to another his right to prosecute such action.”

We now come to a discussion of Hardware Dealers’ alternative claims, contained in its cross-claim, wherein it assumes, but does not admit, the invalidity of its claim under the subrogation clause. It says, notwithstanding the invalidity of its claim under the subrogation clause, it would be entitled to restitution of the money paid to Marks because the money was paid by it in reliance upon the validity of the subrogation provision in the policy. It argues that had it known of the invalidity of the subrogation clause as to assignments of personal injury claims, it would not have inserted the medical expense clause in its policy.

Its claim for restitution in Count I of its cross-claim is based on the ground of money had and received and in Count II on the alternative ground of breach of contract because of Marks’ failure to execute and deliver to it a written assignment and subro-gation receipt.

Initially, we point to Section 537.090 RS Mo 1959, 37 V.A.M.S. providing for the damages recoverable in a wrongful death action. The damages are limited to the pecuniary loss sustained which necessarily results from the death, to those entitled to recover. Caen v. Feld, Mo., 371 S.W.2d 209. The recovery is compensatory in nature and in the instant case Marks in his lawsuit could show anything, including funeral expenses, which would help the court or jury in determining his pecuniary loss. However, the statute limits recovery to $25,000. This indicates that the statute did not intend to permit recovery for total pecuniary loss in all cases. In the instant case there is nothing in the record to show whether the lump sum settlement included all, part or any of the funeral expenses. As we have said before funeral expenses are not recoverable as special damages. The settlement was on a lump sum basis without apportionment of specific items of damage. Therefore, can it be reliably said that Marks recovered the funeral expenses from plaintiff in this action? However, we need not determine this because there are more cogent reasons for denying Hardware Dealers’ claim of restitution.

An action for money had and received, although an action at law, is governed by equitable principles. Propst v. Sheppard, Mo.App., 174 S.W.2d 359, 362; 58 C.J.S. Money Received § 1, pp. 906, 907. Hardware Dealers’ cross-claim has for its foundation the subrogation clause in its policy, contending it is entitled to restitution because of Marks’ failure to execute and deliver to it a written assignment. We have shown such a subrogation clause is invalid as to assignment of personal injury claims or wrongful death actions. This would be true whether it is a conventional assignment or is founded on principles of equity. Aetna Casualty & Surety Co. v. Lindell Trust Co., Mo.App., 348 S.W.2d 558, 570. Subrogation is an equitable doctrine and is closely akin to, if not a part of, the equitable principle of restitution and unjust enrichment. 83 C.J.S. Subrogation § 2, pp. 580, 581. What Hardware Dealers is really attempting through its cross-claim is to obtain restitution through the subrogation provision of its policy. If we were to allow recovery through the circuitous route of restitution, we would, in effect, be approving the validity of the subrogation clause as to assignments of personal injury and wrongful death actions, at least the ultimate effect would be the same. Hardware Dealers paid the funeral expenses, not pursuant to the provisions of the subrogation clause, but pursuant to the medical payment provisions of its policy. Heretofore, we have found the subrogation clause invalid insofar as it provides for assignment of all or part of Marks’ cause of action against the tort-feasors for the wrongful death of his wife. In thus declaring the invalidity of this portion of the policy we merely have left an automobile liability policy with medical payment benefits and a policy shorn of any sub-rogation rights. Marks paid a premium for this policy and under the circumstances was entitled to the funeral expense payment, regardless of what further action he may have taken in bringing suit against the tort-fea-sors. The claim made by Marks for payment of the funeral expenses was an honest claim for the amount due under the provisions of the policy. In Restatement of the Law, Restitution, § 45, p. 184, it is said “ * * * a person who, induced thereto solely by a mistake of law, has conferred a benefit upon another to satisfy in whole or in part an honest claim of the other to the performance given, is not entitled to restitution.” Hardware Dealers was mistaken as to the validity of the subrogation clause. However, the claim made by Marks was an honest claim for an amount due under the provisions of the policy, but Hardware Dealers says that this provision in the Restatement of the Law is subject to exceptions and cites Section 47 at page 192 of the same authority. This section provides,

“A person who, in order to obtain the performance of a promise given or believed to have been given by another and in exchange therefor, has conferred upon the other a benefit other than the performance of services or the making of improvements to the land or chattels of the other, is entitled to restitution from the other if the transferror, because of a mistake of law,
(a) erroneously believed the promise to be binding upon him and
(b) did not obtain the benefit expected by him in return.”

The obvious answer to this exception is that Hardware Dealers did not make payment under the medical provisions because of an erroneous belief of law. There was no mistake of law in this respect by Hardware Dealers. It was bound to make this payment under the provisions of the policy and was not mistaken as to the law. The only mistake of law made by Hardware Dealers was that concerning the validity of the subrogation provision and even if it would have determined before it made the payment that the subrogation provision was invalid, it could not have refused to make the payment of the funeral expenses under the other provisions of the policy.

It was said in Eichenberg v. Magidson’s Estate, Mo.App., 170 S.W.2d 105 that a claim based on money had and received only lies where one person has received money belonging to another, which, for reasons of equity and good conscience, he ought to pay to the owner. As said in the Eichenberg case, “ * * * the underlying theory is that the money, however received, was received for the use of the plaintiff; and unless the case is one where such a situation obtains, the particular action does not lie. * * ⅝ »

In 58 C.J.S. Money Received § 8, p. 919 it is said:

“ * * * In order to sustain an action for money had and received, it must appear that the money in question belonged to plaintiff, that it was secured by defendant without plaintiff’s consent, and without giving any valid consideration, * * *. It is immaterial how the money may have come into defendant’s hands. The action does not lie unless the money was received for the use of plaintiff.”

If Hardware Dealers had no cause of action or claim against the tort-feasors, how can it be said that Marks had money belonging to Hardware Dealers and that it was secured by Marks without Hardware Dealers consent and was money received for the use of Hardware Dealers?

Hardware Dealers also says, if the subrogation provision is void, there has been a substantial failure of consideration. In order to recover for this reason in an action for money had and received it must be shown that the consideration has wholly failed. Propst v. Sheppard, supra, 174 S.W.2d 1. c. 363; 58 C.J.S. Money Received § 5, p. 915. We point out that if there has been any failure of consideration it has been only partial. However, the consideration it refers to, namely, the subrogation provision, we have held to be invalid insofar as it attempts to assign the cause of action involved. It becomes evident from what we have said that Hardware Dealers’ claim for restitution in Count I of its cross-claim based on the ground of money had and received must be denied.

Count II of Hardware Dealers’ cross-claim for restitution is based on Marks’ alleged breach of contract because he failed to execute and deliver to it a written assignment and subrogation receipt. Restitution is held inexpedient when it is opposed to public interest. Restatement of the Law, Restitution, Topic 3, Mistake of Law, p. 179. Where the transaction on which the claim is based is illegal, the transferor (Hardware Dealers) is not entitled to restitution if the transferee (Marks) refuses to perform and again the transferor is not entitled to restitution if the basis of the claim is contrary to public policy. Restatement of the Law, Restitution, Chapter 47, pp. 193-194. We have held heretofore that the subrogation clause of the policy calling for the assignment and subrogation receipt was invalid because it was against public policy and, therefore, the same reason that would prevent subrogation and assignment of the claim would prevent invoking the kindred principle of restitution. The same reasons of public policy which make personal injury and wrongful death claims not assignable operate with the same effect against their transfer by so called subrogation and its kindred principle of restitution. Fifield Manor v. Finston, 54 Cal.2d 632, 7 Cal.Rptr. 377, 354 P.2d 1073, 78 A.L.R.2d 813.

Finally, Hardware Dealers contends that if the subrogation provision is illegal it could not possibly have known of the illegality of the provision because the Chumbley case, supra, was not decided until long after its insurance contract was made. There is no merit to this contention because the Chumbley case was based on and supported by the case law we referred to, cited and quoted in the early part of this opinion, beginning with a case that was decided in 1909. The law in Missouri, as we have shown, has always been to the effect that a cause of action for personal injury and a kindred action for wrongful death has never been assignable in the state of Missouri and, therefore, Hardware Dealers knew or should have known that a policy provision like the one in question was void in this state. This principle of nonassignability was law even after the statute had been amended (1907) so that a cause of action for personal injury survived. No case in Missouri has ever held otherwise. Therefore, contrary to Hardware Dealers contention, the policy provision as to assignment was void under a rule of law long established when the insurance policy was issued. In Restatement of the Law, Restitution, § 44, p. 181 it is said: “A person who has paid money or otherwise conferred a benefit upon another induced thereto by a mistake of law is not entitled to restitution if he would not have been so entitled had the mistake been one of fact.” Under the circumstances of this case, Hardware Dealers would not have been entitled to restitution whether this be a mistake of fact or of law. - There is no doubt that it was a mistake of law on its part and, therefore, not entitled to restitution. See illustration 2, Restatement of Law, Restitution, § 44, p. 182. It is quite apparent that Hardware Dealers assumed the risk of including this provision in its policy thinking that we would change the rule in Missouri as contended for in its brief. We are powerless to change the rule and must follow it as we find it to be in the case law decided by the Supreme Court of this state and, inasmuch as we find the law prohibits the assignment in question because it is against public policy, Hardware Dealers should not now be heard to claim any equitable right including the right to restitution.

We have extended our opinion because of the vigor with which counsel for Hardware Dealers in his brief and in his oral argument has contended that the rule as found in the Chumbley case was not the law of the state of Missouri and that such a rule if followed is anachronistic and outmoded.

For the reasons we have given the judgment of the trial court should be affirmed and it is so ordered.

WOLFE, P. J., and ANDERSON J., concur.


source: Caselaw Access Project

author: TOWNSEND, Commissioner.

license: Public Domain

text:
    Nide COBB, Jr., Plaintiff-Respondent, v. Robert Earl COSBY, Defendant-Appellant.
    No. 32333.
    St. Louis Court of Appeals. Missouri.
    Jan. 17, 1967.
    Motion for Rehearing or to Transfer to Supreme Court Denied Feb. 21, 1967.
    Application to Transfer Denied March 13, 1967.

      Eaker, Dempsey & Dempsey, Lloyd E. Eaker and Robert W. Henry, Clayton, for appellant.
    Mogab & Hughes, Richard L. Hughes, St. Louis, for respondent.
   TOWNSEND, Commissioner.

In this rear-end collision action, plaintiff sues for damages in two counts. Count I alleges personal injuries and diminution in the value of his automobile. Count II grounds his claim upon medical bills incurred in the treatment of his wife and upon loss of consortium. He prays for judgment of $5000 under each count. The wife is not a party to the action and did not appear as a witness.

At the trial the plaintiff testified as to the nature of his personal injuries and as to his pain, starting the day after the collision and continuing sporadically up to the time of trial. He is no longer able to carry paper in boxes, a part of his employment duties, as he did before the accident, because of pain in the lower part of his back. He cannot run or jump “like I used to * * * the lower part of my back starts hurting.” If he stands or sits in one position for a long time his legs have a tendency to get numb. He testified also regarding the loss suffered in the wrecking of his car resultant upon the collision. Plaintiff’s attending physician gave testimony as to his examination of plaintiff, the character of the latter’s injuries, his diagnosis and treatment of plaintiff and his professional charges therefor. Five days after his first examination, plaintiff was again examined by his physician; at that time he complained of low back pain and he had a sciatic radiation down both legs to the knee. The physical findings “revealed sprain and contusions of the cervical and lumbar spine, traumatic and recent.” Two days before-trial the doctor found that plaintiff had' limited full flexion in bending and there-was limitation of motion in straight leg raising. These limitations and pain in the low back were consistent with the trauma reported to the physician upon the first examination almost two years before. Counsel then queried: “ * * * do you have an opinion with reasonable medical certainty whether or not Mr. Cobb’s present condition, lumbar sprain, is a permanent condition because the back pain has persisted on a steady basis ?” Answer: “Particularly for that reason, it will be two years in May, I will have to assume that it is permanent.”

Plaintiff gave testimony regarding the circumstances of the collision and the consequent conveyance by ambulance of his wife and children to the hospital where they were examined (although plaintiff was not); in a short time — “about an hour or longer” — they were released and allowed to go home. Charges by the hospital totalled $78. The next day his wife “complained of her neck and her back and her shoulders”. On the second day after the collision both husband and wife went to their doctor’s office where both were examined. The court sustained objections to questions put to plaintiff relating to his wife’s injuries as it later did to questions put to the physician regarding the wife’s complaints and his diagnosis of her condition. However the physician was permitted to testify to the number of times (thirteen) he had seen the wife “in relation to the accident”, his professional fees for her visits including charges for X-rays and his opinion that “there was a causal relationship between the rear end collision and her condition.” The only evidence offered on the loss of services was plaintiff’s testimony that his wife was not able to do the wash by herself as before the collision and that he now helped her with the laundry. Plaintiff’s wife was about four months pregnant at the time of the collision and was delivered without difficulty.

At a conference between counsel and Court in chambers, the Court dictated into the record:

“Let the record show that * * * by further agreement of counsel Verdict Form 32.02, Modified, will be submitted to the jury, reserving the right of Mr. Eaker to appeal on the theory that plaintiff has failed to make a case of loss of consortium. Let the record further show that, by agreement of counsel, the damage Instruction M.A.I. 4.01 can be used without inclusion to cover all elements of damage, and that plaintiff will be permitted to argue, by agreement of counsel, the questions of personal injuries to the plaintiff, property damage loss on behalf of plaintiff, loss of consortium and services, and medical bills on behalf of plaintiff’s wife during his closing argument.”

The Court gave the verdict directing rear-end collision instruction as found in MAI 17.16 and the general damage instruction, MAI 4.01. Instruction No. 7 embodied MAI 32.02, modified; under Forms of Verdict it read:

“If all of you agree upon a verdict for plaintiff, it may be in the following form:
‘We, the jury, find the issues in favor of the plaintiff and assess plaintiff’s damages as follows:
For personal injuries $- (here insert the amount or if none write the word ‘none’).
For property damages $- (here insert the amount or if none write the word ‘none’).
For loss of services of his wife and medical expenses incurred by him in her behalf $- (here insert the amount or if none write the word ‘none’).’ * * *
THESE FORMS ARE GIVEN FOR GUIDANCE ONLY AND YOUR VERDICT SHOULD BE WRITTEN ON A SEPARATE PAPER, AND NOT ON ONE OF THESE INSTRUCTIONS.”
The jury returned the following verdict:
“We, the Jury, find the issues in favor of the plaintiff and assess the plaintiff’s damages to the extent of $2500.00;
(Signed) Cloycel E. Matheny, Foreman.”

Upon appeal, the defendant contends that the giving of Instruction No. 7 was error in that there was no evidence to support the items of loss of wife’s services and of her medical expenses and that in any event the judgment cannot be sustained because the verdict did not state the amount awarded for plaintiff’s injuries, or the amount for his property damage or the amount for loss of consortium, all matters appropriately preserved by defendant’s motion for a new trial.

Defendant’s complaint that there was no evidence which justified submission under Count II of the petition cannot be sustained. Clearly the evidence under this head was scanty but as to medical expenses it was quite definite. Insofar as loss of services and medical expenses were lumped together as one item under Instruction No. 7, defendant is precluded from complaining now about such a combination because he acquiesced in the use of that form.

The chief complaint of defendant relates to the failure of the verdict to conform to the requirements of Supreme Court Rule 71.06. That rule provides:

“When both damages for personal injuries and damages to property are allowed by the jury, the verdict shall state separately the amount allowed for the aggregate of the items of damage connected with the personal injury and the amount allowed for the aggregate of the items of damage connected with the injury to the property.”

Obviously the verdict does not tell upon what ground or grounds the jury determined the amount of plaintiff’s damages.

We think it is a necessary corollary to the stated rule that where damages for both personal injuries and property damage are prayed and submitted it is the duty of the court to instruct the jury that it shall state the amount awarded in respect of each, including none if such be the case. Recognition of this corollary is found in MAI 32.02, except to the extent that permissiveness may be found explicit in its wording.

Plaintiff’s brief argues that the use of the word “may” in MAI 32.02 (“ * * * it may be in the following form”) told the jury that while it might use the stated form it did not have to do so, that the jury followed the instructions given it (presumably in MAI 4.01), that the verdict was a general one and that under such circumstances a verdict will not be held reversibly defective unless it is in reality “no verdict”. It cannot be admitted that the word “may” renders ambiguous the verdict form in MAI 32.02. The very word clearly indicates its non-compulsive character. However even though that form be regarded as not mandatory and so permits a departure from it, still the command of Rule 71.06 will persist. And Rule 71.06 can be complied with even though there be a departure from the form of MAI 32.02; the verdict might read: “We the jury find the issues in favor of plaintiff and award him $-for personal injuries and $- for damage to his car.” As long as Rule 71.06 exists, it is the duty of the court to instruct with respect to its requirements where appropriate and to see that the verdict conforms to the rule, when applicable. That plainly was not done in the instant case, the Court evidently relying upon MAI 32.02 to cover the ground.

Here the command of Rule 71.06 was not honored. What was the effect upon the verdict of such non-compliance? The verdict was received by the court and judgment entered thereon. There is nothing in the record to show that the defendant made any objection to it until he filed his motion for a new trial.

Various Missouri cases speak in terms of the duty of court and counsel to cause the correction of defects in the verdict. See Jordan v. St. Joseph R., L., H. & P. Co., 335 Mo. 319, 73 S.W.2d 205. Thus it is stated in Cable v. Metropolitan Life Ins. Co., 233 Mo.App. 1093, 128 S.W.2d 1123, 1127: “If the defendant had called the attention of the trial judge to any infirmity in the verdict at the time the verdict was returned, as it had right to do * * *, he could have returned the jury to its room to further consider the verdict. * * * It must be remembered this appeal is legally a charge that the circuit judge committed error prejudicial to the defendant. Manifestly, it would be unfair to convict such judge of an error on account of a ruling to which the defendant did not object at the time.” Further to the point of counsel’s duty is Johnson v. Girvin’s Estate, Mo.App., 370 S.W.2d 163, 167: “It is the duty of a trial court to examine the verdict when it is returned; and, if such verdict is found to be insufficient as to form, ambiguous, or inconsistent, the court should require the jury to correct it * * *. Needless to say, it is counsel’s duty to call the attention of the court to any inconsistency or irregularity in such verdict(Our emphasis.)

The precise question which we now have before us was considered and ruled upon by the Springfield Court of Appeals in Bunch v. Crader, Mo.App., 369 S.W.2d 768. There the plaintiff sued for personal injuries and for damage to his motor vehicle. There the jury returned a verdict for plaintiff for $1800, without separation of the items of damage. Defendant did not object to the form of the verdict when given to the jury and made no objection to the verdict until he filed his motion for new trial. Upon appeal, he complained of the violation of Rule 71.06. In affirming the judgment for plaintiff, the Court of Appeals held: “ * * * unless the verdict is fatally defective as being actually no verdict, the complaining party must make timely and appropriate objections in order to give the trial court opportunity to correct the infirmity before the jury is released.”

In other jurisdictions, under similar circumstances, the failure of a defendant to object to the verdict has been denominated Waiver of the Objection and here plaintiff would have us hold that defendant has waived any claim of error. Such in effect was the holding of the appellate court in Bunch v. Crader, supra, although the term “Waiver” was not used in ruling the matter, and we find ourselves in accord with the holding of that court. Having failed to make timely objection, defendant cannot wait until judgment has been entered upon the verdict and then raise the question for the first time in his motion for new trial.

We cannot find that the verdict for $2500 was excessive. There was medical evidence as to the permanency of plaintiff’s injury. Uncontradicted testimony on behalf of plaintiff showed that his obligations for medical and hospital expenses alone total-led $398 and that the loss in respect of his automobile was $183. We do not find that defendant’s objections to evidence are substantial. See Missouri Digest, Evidence.

Judgment is affirmed.

PER CURIAM.

The foregoing opinion by TOWNSEND, C., is adopted as the opinion of this Court. Accordingly, judgment is affirmed.

WOLFE, P. J., and ANDERSON and RUDDY, JJ., concur.

      . It involves no intellectual difficulty to extend the rule of 71.06 to cover the situation where, as here, a third ground of recovery is added and submitted, namely, the cost of the wife’s medical treatment. In any event the stated requirement of 71.06 is not eliminated by submitting the third ground.


author: L. F. COTTEY, Special Judge.

text:
    Robert E. VAUGHN, Appellant, v. James W. RIPLEY, Respondent.
    No. 24610.
    Kansas City Court of Appeals. Missouri.
    April 3, 1967.
    Motion for Rehearing and/or Transfer to Supreme Court Denied June 5, 1967.

      Hensley, Rahm & Braton, Warrensburg, Harold L. Caskey, Butler, for appellant.
    E. J. Murphy, Butler, Felix V. Gross, Pleasant Hill, for respondent.
   L. F. COTTEY, Special Judge.

Plaintiff sued on an account and defendant pleaded payment. Thereafter, the case enjoyed a respite from professional attention for approximately six years. Then it was ordered tried and counsel for both sides were notified of the setting. Defendant did not appear on the appointed day, but plaintiff did, and, at a hearing before the court, took judgment for $2,956.62. A few days later, on learning of the result, defendant moved to set aside the judgment, alleging that he had a meritorious defense which he had been prevented from asserting by a combination of circumstances that were detailed in the motion. Plaintiff responded with a spirited denial and the dispute, more than a little tinged with rancor on the part of the contending attorneys, was submitted to the court. At the conclusion of the hearing the court took the matter under advisement, announcing that a decision would be reached the following day. On the following day and within the 30-day period prescribed by Civil Rule 75.01, V.A. M.R., the court tactfully overruled the pending motion but entered an order, on the court’s own motion, setting aside the judgment and directing a new trial for the assigned reason that “defendant has been deprived of his day in court.” Plaintiff appeals. The only question is whether the court acted beyond the permissible limits of judicial discretion under the circum- ■ stances shown.

The evidence at the hearing was to this effect: The attorney who had filed the suit for plaintiff and the attorney who had represented defendant during its pendency, both being able and reputable members of the bar of their neighboring communities, had been acquainted with each other on a first-name basis for a long time. Over the years they had come to deal with each other in a friendly and informal manner, with every indication of mutual esteem. Two or three days before the scheduled trial date, in a telephone conversation between them, defendant’s attorney told plaintiff’s attorney that it would be inconvenient for him to take up the case on the date set, and asked him to agree to a continuance. Plaintiff’s attorney countered with an offer to settle the case for $500.00, and, when that was disparaged, declined the request for a continuance ; but not so emphatically, it seems, as to preclude the possibility of its being reconsidered if renewed for a sounder reason. With that idea in mind, apparently, defendant’s attorney called his client and learned from him that because of an emergency at the bank where he was employed it would not be possible for him to appear on the date set without real hardship. Counsel then called the trial judge, explained the situation, inquired if another trial date in the near future was available, and was informed that a six day later date was open. Armed with that information, he called plaintiff’s attorney again, made a new request, and was again refused. Now it may very well be that a six day postponement of a case that has lain dormant on the docket for nearly six years by mutual consent is not an extravagant request to make, especially for good reason, and it is understandable that counsel might have looked forward with confidence to its being granted. But he took an even more sanguine view. He assumed that the refusal of his request was simply a good-humored jest and that plaintiff’s attorney would not actually call the case up until the latter date. Acting on that assumption, without any formal application for a continuance and without further communication with his adversary, he notified his client that a postponement had been arranged and that it would not be necessary for him to appear on the earlier date. Thus it was that neither of them was present when the judgment was taken.

Counsel for both sides seem to-be under the impression that the decision on this appeal will turn on the question of who was right and who was wrong in the affair that culminated in the judgment below. But an approach by that path is more apt to lead us around the problem than to it. The question before us is whether the trial court abused its discretion by setting aside the judgment and ordering a new trial. By the very terms of the rule under which that action was taken, its propriety must be judged by whether it was taken “for good cause.” The rule was not designed to censure wrong, but to right it. The private quarrel of the lawyers is therefore a distraction, not an aid, to the inquiry. Error implies fault. “Good cause” for remedying it begins with that premise and concerns itself only with whether the fault should be excused or extenuated in the interests of justice. The term “good cause”, as used in this connection, is not susceptible of precise definition, but it was obviously coined to serve a remedial purpose in a. matter addressed primarily to the conscience of the court and it should therefore be interpreted with commensurate liberality, not only to prevent a manifest injustice but to avoid a threatened one, especially in cases tried without a jury where evidence on one side only is presented. Long v. Stilwell Homes, Inc., Mo.App., 333 S.W.2d 103, 106. When a judgment has been set aside in conformity with that principle, the result ought not be overturned except for most cogent reasons directly affecting the administration of justice, for if the order be only doubtfully in error, the error is a transient one “and justice will yet be done on the merits.”, Kollmeyer v. Willis, Mo.App., 408 S.W.2d 370, 380-1, and cases cited; De Maire v. Thompson, 359 Mo. 457, 222 S.W.2d 93, 97. This is not to condone conduct intentionally designed or irresponsibly calculated to impede the work of the courts, but only to say that where a reasonable doubt exists, it should be resolved in favor of good faith.

The trial court’s order in this case was in line with that principle. No doubt defendant’s attorney presumed too far on his adversary’s good nature, no doubt he acted without valid reason; but his sincerity is unquestioned. His fault was a lack of good judgment, not a lack of good faith. Because of it, an obviously blameless litigant has been deprived of a meritorious defense and saddled with a debt some six times greater than the amount for which the claim could have been settled. Whether that constitutes a deprivation of “his day in court” — that is, his “opportunity to be heard,” 25A C.J.S., p. 476, and cases cited —in a literal sense, or whether the phrase was used in the order as a figure of speech to describe a comparable result, it is unnecessary to decide. In either event the order was so clearly proper that not a single authority has been called to our attention that could be said to be critical of it.

Plaintiff complains that the order was entered without notice and is therefore void, citing Hoppe, Inc. v. St. Louis Public Service Co., Mo.Sup., 235 S.W.2d 347, 348, where it was held that the trial court may not “make such order without reasonable notice to the parties to the action, and without giving them an opportunity to be heard as to the propriety of such order.” In that case the court acted summarily and solely on its own initiative, without notice or warning of any kind. There is not the remotest resemblance between that case and this. Here a motion was filed requesting the relief that was ultimately granted and specifying the grounds for it, and plaintiff was thereby put on notice that the court might grant it on its own motion, treating the pending motion merely as a “suggestion of defendant” that the action be taken. Harrison v. Weisbrod, Mo.App., 358 S.W.2d 277, 282. That is by no means all. Plaintiff replied to the motion, appeared at the hearing on the issue thus framed, argued every point that could conceivably have been raised in opposition to it, as the transcript shows, and, at the conclusion of the hearing, was pointedly informed by the court that a decision would be reached the following day. Thus he was accorded, and he exercised, every right to which he was entitled by law or logic.

The order is affirmed and the cause remanded for trial.

All concur.


author: TITUS, Judge.

text:
    Laverna DRENNEN, Plaintiff-Respondent, v. Willet W. WREN, a/k/a Wesley Wren, Defendant, M. F. A. Mutual Insurance Company, a corporation, Garnishee-Appellant.
    No. 8637.
    Springfield Court of Appeals. Missouri.
    May 23, 1967.

      Dearing, Richeson, Weier & Roberts, Samuel Richeson, Hillsboro, for garnishee-appellant.
    Roberts & Roberts, Raymond R. Roberts, Farmington, for plaintiff-respondent.
   TITUS, Judge.

Plaintiff was a passenger in an automobile which was “rear-ended” by a vehicle belonging to defendant, Willet Wesley Wren, and obtained a $4,000 verdict and judgment in the damage suit that ensued. When that judgment became final, plaintiff caused summons of garnishment to be served on the defendant’s insurer, M.F.A. Mutual Insurance Company, the garnishee herein. The instant appeal is by the garnishee from a judgment against it and in favor of plaintiff for the amount of the tort judgment, plus interest and costs.

In the garnishment action garnishee disavowed liability under its policy because Wren, until after the tort trial had been concluded, misrepresented he was driving the insured vehicle at the time of the accident and made misrepresentations in his application for insurance. As to garnishee’s second assertion plaintiff contended the insurer by its alleged actions or inactions had waived such defense. Concerning defendant’s breach of the cooperation condition of the policy, plaintiff argued such a defense is dependent on “whether or not defendant was driving at the time of this collision” and since this fact was directly or inferentially found to exist by reason of the tort judgment it was res judicata in the garnishment suit or garnishee was estopped to deny same. Apparently convinced of the correctness of plaintiff’s position, the trial court rejected most all evidence proffered by garnishee. However, as garnishee’s offers of proof are in the record we recite and consider the conglomerate evidence (i. e., both that received and that refused but offered) to the extent appropriate. Underwood v. Fortune, Mo.App., 9 S.W.2d 845, 846(2); Zorensky v. Wellston Clothing Co., Mo.App., 223 S.W.2d 851, 855(4).

At the accident scene the driver of the insured vehicle informed observers his name was Willet Wesley Wren and had displayed to the investigating highway patrolman a driver’s license issued in that name. Wren, the insured, had given garnishee’s representative a recorded statement to the effect he was operating the car when the collision occurred. Shortly before trial (and seemingly after considerable difficulty with arrangements) Wren deposed for plaintiff’s counsel and testified concerning his actions and operation of the involved automobile. Defendant detailed his conduct in kicking beer cans at the casualty scene which had resulted in his receipt of a citation for “littering.” None of those at the scene, including the patrolman, were personally acquainted with Wren. The beer can-kicking episode and the accident circumstances prompted defendant’s counsel (provided by garnishee) to consult with Wren as to the advisability of confessing or admitting liability. With the acquiescence of Wren this was done and the jury was relegated to determine only the amount, if any, of plaintiff’s damages.

As Wren had not responded to the “littering” citation, the patrolman arrived at the courthouse for the damage suit trial intent upon arresting defendant on this charge. Defendant’s counsel persuaded the trooper to postpone the arrest until after the trial and during a trial recess observed the patrolman and Wren enter the offices of the prosecuting attorney in the courthouse. At the conclusion of the trial and when the jury was deliberating, curiosity overcame defendant’s lawyer when he observed the patrolman had departed the courthouse without Wren in tow. Inquiry of the sheriff caused the attorney to confront Wren directly with the doubt then acquired and Wren confessed he had not been driving the vehicle but rather it was being operated by his brother-in-law, Ralph DeClue, who had taken the car with the permission of Wren’s wife. De-Clue was in the state penitentiary on the date of the trial. Armed with this discovery, counsel hied himself to the courtroom to spread the tidings only to learn the jury had already reached and returned its verdict. Thereafter, counsel informed the court and plaintiff’s attorney of the development and advised Wren (later confirmed in writing) garnishee was denying coverage because of Wren’s misrepresentation as to the identity of the driver of the insured automobile. Wren was told to secure personal counsel and admonished he had hut fifteen days in which to file a motion for new trial. Garnishee also subsequently advised Wren the insurance contract was considered void due to his application misrepresentations. It is contended Wren had misrepresented two convictions for moving traffic violations when he applied for insurance. Wren did not obtain counsel or file a motion for new trial.

Had the patrolman been permitted, the offer made recited he would have testified that when he confronted Wren on the date of the damage suit trial, he became aware defendant was not the person driving at the time of the accident. A photograph of De-Clue shown him by the sheriff and another look at Wren when the garnishment was tried, convinced the patrolman it was De-Clue and not Wren who was the driver and kicker of beer cans. DeClue’s offered testimony he was driving the car was likewise rejected by the trial court. Wren was in court at the trial of the garnishment but refused to testify “because it might tend to incriminate me.”

Preliminary to our consideration we review several applicable rudiments. The automobile insurance policy issued by garnishee to Wren was essentially a contract of indemnity rendering the parties’ relationship as that of indemnitor and indem-nitee. Kollmeyer v. Willis, Mo.App., 408 S.W.2d 370, 378-379(7, 8). Policy conditions requiring an insured’s cooperation have been declared to be binding and enforceable provisions and conditions precedent of liability on the part of the insurer. Compli-anee therewith, absent excuse or waiver, is essential to permit a recovery on the policy and noncompliance entitles the insurer to-deny liability under the policy. “Truthfulness seems to be the keystone of the co-operation arch. The insured must tell his insurer the complete truth concerning the accident * * * ” Home Indemnity Co. of New York v. Standard Acc. Ins. Co. of Detroit (9 CCA) 167 F.2d 919, 924. When an insured wilfully and falsely represents to the insurer “the fact of who-was driving insured’s automobile in any claim made against defendant’s insurer, it follows as a matter of law that such conduct constituted an unexcused lack of cooperation by insured in a substantially material respect. And that, if prejudice to insurer need be shown, either to establish the breach or as a prerequisite to the insurer’s nonlia-bility, such prejudice appears in the instant case as a matter of law.” After a judgment has been obtained by the injured party against the insured, in an action thereafter by the injured party against the insurer, the injured party stands in the legal shoes of the insured with rights no greater or less than the insured would have in a direct action against the insurer, and the insurer may assert any defense against the injured party it could to defend on an action against it by its insured. Meyers v. Smith, supra, 375 S.W.2d at 15 (5); Kollmeyer v. Willis, supra, 408 S.W.2d at 379, and cases collected, in footnote 15.

Res judicata is a term used with little discrimination intending different meanings in different situations. 77 C.J.S. Res Judicata, p. 274. The particular cousin of the res judicata generic tribe plaintiff seeks to pull from beneath the family Mañ-ket to champion her cause is denominated in modern parlance as “collateral estoppel,” and is epitomized in the common prescription that where an indemnitor had notice of the suit against the indemnitee and has been afforded the opportunity to appear and defend, the judgment against the indemnitee, if obtained without fraud or collusion, is conclusive against the indemnitor in respect to all questions and facts therein determined, provided they were necessary to the result of the first suit. The Evergreens v. Nunan (2 CCA) 141 F.2d 927, 928(3), 152 A.L.R. 1187. Generalities, as round numbers, often prove false and exceptions which construct the tail often wag the general rule. Proper application of the rule depends on what we consider “facts.” Judge Learned Hand in The Evergreens v. Nunan, supra, 141 F.2d at 928-930 wrote: “However, a ‘fact’ may be of two kinds. It may be one of those facts, upon whose combined occurrence the law raises the duty, or the right, in question; or it may be a fact, from whose existence may be rationally inferred the existence of one of the facts upon whose combined occurrence the law raises the duty, or the right. The first kind of fact, we shall for convenience call an ‘ultimate’ fact; the second, a ‘mediate datum.’ ‘Ultimate’ facts are those which the law makes the occasion for imposing its sanctions * * *. The next question is whether * * * the judgment [in the first suit] conclusively establishes for any purpose any other facts than those which were ‘ultimate’ in the first suit; that is to say, whether any facts decided in the first which were only ‘mediate data’ in that suit, are conclusively established in the second suit * * *. The important question here is not therefore whether ‘mediate data’ in the first suit are as conclusively established as ‘ultimate’ facts in that suit. On the contrary, we are to decide what are the purposes in the second suit for which anything decided in the first suit — whether ‘ultimate facts’, or ‘mediate data’ therein — are conclusively established. Do the ‘ultimate’ facts, or the ‘mediate data’ decided in the first suit conclusively establish in the second, anything but facts ‘ultimate’ in that suit ? Do they also establish ‘mediate data’ in that suit; i. e., premises from which to deduce the existence of any of the facts ‘ultimate’ in that suit? * * * [W]e do not hesitate to hold that, even assuming arguendo that ‘mediate data,’ decided in the first suit, conclusively establish facts, ‘ultimate’ in the second, no fact decided in the first whether ‘ultimate’ or a ‘mediate datum,’ conclusively establishes any ‘mediate datum’ in the second, or anything except a fact ‘ultimate’ in that suit.”

Restatement, Judgments § 68(2), p. 293, says, “A judgment on one cause of action is not conclusive in a subsequent action on a different cause of action as to questions of fact not actually litigated and determined in the first action.” Comment p. (1948 Supplement, p. 336): “Evidentiary facts. The rules stated in this Section are applicable to the determination of facts in issue, i. e., those facts upon whose combined occurrence the law raises the duty or the right in question, but not to the determination of merely evidentiary or mediate facts, even though the determination of the facts in issue is dependent upon the determination of the evi-dentiary or mediate facts.”

“Our Missouri cases refine and enunciate this general principle [supra] in somewhat more restrictive and demanding terms: ‘Where one is bound to protect another from liability, he is bound by the result of the litigation to which such other is a party, provided he had * * * opportunity to control and manage it.’ ” Listerman v. Day and Night Plumbing & Heating Serv., Mo.App., 384 S.W.2d 111, 118-119. “[T]he judgment in the prior suit is not conclusive evidence of all matters necessary to be proved by the plaintiff against the indemnitor. Thus the question whether the relation exists which gives a remedy over is of course open to inquiry.” Dolph v. Maryland Casualty Co., 303 Mo. 534, 261 S.W. 330, 332. “We recognize that certain issues between insurer and insured, e. g., fraud in the procurement of the policy or breach of an essential condition, are not litigable in the main case against the insured in a negligence action * * * and that such issues would survive inter partes an adverse judgment in the main suit.” Grain Dealers Mutual Insurance Co. v. Quarrier (Fla.App.) 175 So.2d 83, 86. “While the judgment will be conclusive on him as far as concerns the facts of the rendition of the judgment, its amount, and the cause of action on which it was rendered, it will not determine the question whether he is in fact responsible over; nor will it preclude him [the indemnitor] from setting up any defenses which from the nature of the action or the pleadings he could not have interposed in the first action * * *” 50 C.J.S. Judgments § 811b, pp. 362-363. While prior judgments are conclusive as to all litigated issues “they were not tried to prove nor did the judgments establish that the loss was within the coverage of the policy.” Manthey v. American Automobile Ins. Co., 127 Conn. 516, 18 A.2d 397, 399(5). The insurer should have the right to dispute the questions which make it liable on its contract. State ex rel. State Farm Mutual Automobile Insurance Company v. Craig, Mo.App., 364 S.W.2d 343, 347, 95 A.L.R.2d 1321. “The rule has always been regarded as well settled, from the earliest authorities down to the present time, that the judgment * * * is not conclusive of any matter which was incidentally cognizable in that action, or which came collaterally in question, nor of any matter to be inferred by argument and construction from the judgment. The estoppel of a judgment extends only to the question directly involved in the issue, and not to any incidental or collateral matter, though it may have arisen and been passed upon. * * * ” 2 Black on Judgments (2d Ed.) § 611, p. 928. “It must be kept in mind that this present action is not based upon tort * * * but upon contract, and garnishee’s liability, if any, is fixed by the contract (insurance policy) * * *. The liability of the defendant (insured) for damages has been fixed and becomes final by the judgment in the original suit, but the liability of the insurer on its contract presents an entirely different issue, and one which must be decided by the provisions of the contract of insurance.” Perkins v. Becker, 236 Mo.App. 786, 157 S.W.2d 550, 552, 553 (3) .

An oversimplified division of the application of the res judicata doctrine concerns, first, the effect of the judgment upon the cause of action on which the judgment is predicated and, second, the effect of that judgment upon a subsequent dispute between the parties, or those in privity, on a different cause of action. In the first instance if the judgment is for the plaintiff it concludes the cause of action by merger, i.e., the cause of action terminates by merging in the judgment; if the judgment is for the defendant the cause of action ends because the judgment is effective as a bar; and in either case it matters not what facts were or might have been litigated or that no issues were litigated. In the second division, supra, the judgment in the first suit does not extinguish the second cause of action by either merger or bar, but may be effective, through collateral estoppel, to conclude the parties as to facts and matters actually contested and litigated in the first action. In the case now before us the first judgment is conclusive on the plaintiff and defendant, and hence the garnishee, as to defendant’s liability to plaintiff on the tort cause of action in the amount of the verdict rendered. Nevertheless, the judgment in the tort action is not conclusive on the parties in the garnishment suit as to facts not actually litigated in the first action or to facts that were merely evi-dentiary or mediate datum inferentially involved in the first. The issue of garnishee’s liability, if any, on the contract (insurance policy) was not litigated in the first suit. Whether or not defendant obtained the policy through misrepresentation or violated the cooperation conditions of the contract were not issues in nor determined in the damage suit or concluded by the tort judgment. Also, whether defendant or DeClue was the operator of the insured automobile at the time of collision was not conclusively determined in the damage suit in so far as such fact is relevant to the garnishment issues. The expediency afforded litigation and the obvious advantages inuring to courts through the dispatch and speedy determination of causes by consent judgments or admissions of liability, should not be discouraged by holding that every fact concerned in the first suit be conclusively established between the parties in all future suits simply because the fact was necessary to the result. The Evergreens v. Nunan, supra, 141 F.2d at 929; 39 Iowa Law Review No. 2, Alan N. Polasky — Collateral Estoppel — Effects of Prior Litigation, pp. 217-254.

We are of the opinion the trial court erred in excluding the offered evidence on the apparent misconception the tort judgment was conclusive on the parties in the garnishment action as to all facts inferentially involved in the damage suit and necessary to the result there obtained. What we have of necessity assumed from the offers of proof should in no way suggest how the garnishment issues are to be ultimately resolved. Whether defendant, in fact, breached the contract or obtained the policy through misrepresentation so as to relieve garnishee of liability, will be for determination by the fact trier upon the new trial of the garnishment case.

Respondent filed a motion to dismiss the appeal for appellant’s alleged failure to comply with V.A.M.R. 83.05(c) by claiming appellant’s Statement of Facts in its brief omitted all references to the pleadings and respondent’s evidence. The rule requires only a “statement of facts relevant to the questions presented for determination.” As appellant admits the sufficiency of the pleadings (i.e., plaintiff’s interrogatories, garnishee’s answer thereto, plaintiff’s denial of garnishee’s answers, and the reply to the denial) and plaintiff’s evidence to make justiciable issues in the garnishment action, we do not deem it was necessary for appellant to relate these matters in its brief under Statement of Facts because these items were not concerned with “the question presented for determination.” Accordingly, respondent’s motion to dismiss is overruled and denied and the cause is ordered reversed and remanded for a new trial.

STONE, P. J., and HOGAN, J., concur.

      . Northwestern Mut. Ins. Co. v. Independence Mut. I. Co., Mo.App., 319 S.W.2d 898, 902-903(1-3); Donlon v. American Motorists Ins. Co., Mo.App., 147 S.W.2d 176, 179(3); Nevil v. Wahl, 228 Mo.App. 49, 65 S.W.2d 123, 127(3); Motorists Mutual Insurance Co. v. Johnson (Ind.) 218 N.E.2d 712, 715(1-4); 7 Am.Jur.2d, Automobile Insurance § 178, pp. 512-513; 8 Appleman, Insurance Law and Practice, § 4782, pp. 136-143.

      . Quisenberry v. Kartsonis, Mo., 297 S.W.2d 450, 454; Meyers v. Smith, Mo., 375 S.W.2d 9, 17 (13); Motorists Mutual Insurance Company v. Johnson, supra, 218 N.E.2d at 716(7); 42 C.J.S. Indemnity § 16, p. 593 and § 31, p. 612.

      . 42 C.J.S. Indemnity § 32a, p. 613; 46 C.J.S. Insurance § 1251, p. 257-261; Finkle v. Western Automobile Ins. Co., 224 Mo.App. 285, 26 S.W.2d 843, 849 (11); Westinghouse Electric Corp. v. J. C. Penney Co. (Fla.App.) 166 So.2d 211, 216(7); Lake County, etc. v. Massachusetts Bonding & Insurance Co. (5 CCA) 75 E.2d 6, 8(4, 5); 27 Am.Jur. Indemnity § 35, p. 478.

      . “Causes of action for tort liability and indemnity are separate and distinct.” Weeg v. Iowa Mutual Insurance Co. (SD) 141 N.W.2d 913, 916(3).

      . Also see Turgeon v. Shelby Mutual Plate Glass and Casualty Co. (D.C.Conn.) 127 F.Supp. 46-47 (1); Daniel v. State Farm Mut. Ins. Co., 233 Mo.App. 1081, 130 S.W.2d 244, 248; 1 Freeman on Judgments 5th Ed. § 450, pp. 991-994; Restatement, Judgments, § 107g, p. 517; East v. Fields, 42 Wash.2d 924, 259 P.2d 639; Annotation: Judgment — Conclusiveness Against Vouchee — Limitations, 140 A.L.R., pp. 1123-1126; State Farm Mutual Automobile Insurance Company v. Coughran, 303 U.S. 485, 493(3), 58 S.Ct. 670, 82 L.Ed. 970.

      . Caterpillar Tractor Co. v. International Harvester Co. (3 CCA) 120 F.2d 82, 84, footnote 4, 139 A.L.R. 1; Restatement, Judgments, § 46, pp. 174-178 ; 56 Harvard Law Review No. 1, Austin Wake-man Scott — Collateral Estoppel by Judgment, pp. 1-29; 30A Am.Jur. Judgments § 373, pp. 418-421.