source: Caselaw Access Project

author: HUNTER, Judge.

license: Public Domain

text:
    Barbara J. HILL, Plaintiff-Respondent, v. SEABOARD FIRE & MARINE INSURANCE COMPANY, a Corporation, Defendant-Appellant.
    No. 23849.
    Kansas City Court of Appeals. Missouri.
    Dec. 2, 1963.

      Robert S. McKenzie (McKenzie, Williams, Merrick, Beamer & Stubbs), Kansas City, John M. Belisle (Belisle & McNabb), Butler, for appellant.
    E. J. Murphy, Butler, for respondent.
   HUNTER, Judge.

This is a suit on the uninsured motorists clause of an automobile insurance policy issued by defendant-appellant, Seaboard Fire and Marine Insurance Company to plaintiff-respondent, Barbara J. Hill and her husband, Harry A. Hill. Plaintiff obtained a verdict and judgment for $8,000 in the circuit court of Henry County and defendant has appealed.

The background of the action is that on December 31, 1961, plaintiff was driving a 1955 Chevrolet, owned by her and her husband, south on U. S. Alternate Highway 71 about two miles south of Carthage, Missouri, when her car was struck from the rear by a Falcon automobile driven by a soldier named Abe Corley, causing injuries to her.

Plaintiff’s brother-in-law came to the scene and took her to the hospital in Carthage. Defendant was given notice of the accident. While plaintiff was in the hospital she gave a signed statement describing the occurrence to defendant’s adjuster from Joplin, and she and her husband made a settlement of $500.00 under the insurance policy with defendant insurance company for the Chevrolet car damage. However, defendant insurance company denied liability for plaintiff’s personal injuries under its uninsured motorists clause; hence this action.

The uninsured motorists clause provides that defendant company will pay all sums which the insured “shall be legally entitled to recover as damages from the owner or operator of an uninsured automobile * The policy defines an “uninsured automobile” to mean “an automobile or trailer with respect to the ownership, maintenance or use of which there is no bodily injury liability bond or insurance policy applicable at the time of the accident with respect to any person or organization legally responsible for the use of such automobile * *."

On this appeal defendant makes three contentions; namely, that it should have received a directed verdict because (1) there was not sufficient competent evidence to support a finding that the other motorist was uninsured; (2) because plaintiff did not comply with the terms of her policy providing that determination of whether she is legally entitled to recover damages and the amount shall be by agreement, and if they fail to agree, by arbitration, in that she instituted suit before there was a breakdown of settlement negotiations; and (3) that the trial court erred in permitting plaintiff to offer evidence to establish negligence of a third party and damages therefor and to submit those issues to a jury in an action “ex contractu”.

Relative to defendant’s first contention, no separate point has been made by defendant complaining of any prejudicial error on the part of the trial court in admitting into evidence any particular testimony. Rather, defendant has contended itself with the charge that there was not sufficient competent evidence to support a finding that Corley was uninsured. The evidence on this question is confined to the testimony of three witnesses — plaintiff, her husband and defendant’s claim adjuster, Prudden; together with a letter he wrote.

Plaintiff, who was the first witness, testified that at the scene of the accident Cor-ley told her he had insurance and that he gave her husband a card with the name “Farmer’s Mutual” on it. She stated on February 7, 1962, Mr. Prudden came to her. Defendant’s counsel asked, “Q. Well, what was the purpose of that call, what went on, what conversation took place ? A. Well, he wanted to — he wanted to.make a settlement, and we didn’t agree on what he wanted to give us, and he also told us that Corley definitely didn’t have any insurance.” * * * “Q. Did he tell you at the time that he had tried to find insurance on the Corley vehicle? A. Yes, he did. * * * He said that some one had talked to Corley at Arkansas and that he did not have insurance.” Defendant’s counsel unsuccessfully moved that the answer to the last question be stricken. Plaintiff was asked, “Q. Did Mr. Prudden still acknowledge that the Seaboard Fire & Marine Insurance Company admitted that there was no liability insurance on the Corley vehicle at the time of this accident? A. Yes, he did.”

Plaintiff’s husband, Mr. Hill, testified that at the request of Mr. Westbrook he called Farmers Mutual Insurance Company and they told him Corley did not have any policy. The trial court overruled defendant’s motion to strike this statement as being made by ■ one not authorized to bind defendant corporation and as hearsay. Mr. Hill testified without objection that Prudden told him defendant considered Corley to be an uninsured motorist and that he, Prudden, was ready to settle the claim if they were and that Prudden offered seven or eight hundred dollars in settlement.

On cross-examination defendant’s counsel asked Mr. Hill “if there was any conversation about whether any claim was being made under that coverage of your policy, with Mr. Westbrook (defendant’s Joplin adjuster) ? A. Well, after he found out that Mr. Corley didn’t have, yes, there was.”

Mr. Prudden testified he had been the claims adjuster for defendant for 111/2 years. He stated it was his job as claims adjuster to investigate and adjust insurance claims and losses; that he was authorized to and did handle settlement of claims and had authority without consultation with anyone to settle claims and write checks therefor. In answer to defendant’s counsel’s question he stated he contacted plaintiff and her husband, went over the aspects of the policy including the uninsured motorists portion; that he “found out that there had been other insurance — I think Mr. Hill stated that.” * * * Well, I told them that we did not know whether we had, or whether our company would be able to take over until we had established the uninsured motorists coverage * He informed them he “would be agreeable to trying to work something out around $700.00 if there wasn’t any insurance on the other vehicle.” He conceded he gave defendant’s attorney letters received from Farmers Mutual saying they didn’t have coverage on the Corley vehicle at the time of the accident. He stated without objection that the agent of Farmers Mutual “told this Corley boy that his policy was cancelled (prior to the accident).” He conceded that as of the date of the trial his company’s investigation did not turn up any insurance of Farmers Mutual or of anyone else; that he had found insurance in Farmers Mutual that would have covered the boy if it had not been cancelled prior to the accident.

Nine days before suit was filed Prudden wrote plaintiff’s counsel, “We wish to advise that we have been unsuccessful in locating any liability insurance on the Corley vehicle at the time of this accident. Therefore, we shall be pleased to handle this matter under the Uninsured Motorists Protection of our policy.”

Plaintiff has the burden of proof and it was incumbent on her to prove (1) that the other motorist in the accident was uninsured, (2) that the other motorist is legally liable to the insured, and (3) the amount of such liability. We are convinced that the above outlined evidence, omitting from consideration that to which defendant’s counsel made timely objection, is sufficient for the jury to have found that the other motorist was uninsured, and, hence, that the trial court did not err in refusing to direct a verdict for defendant at the close of the case because of lack of evidence that Corley was an uninsured motorist. While some of tliis evidence is hearsay, it was not objected to, and in fact was adduced by defendant’s counsel. It is the established rule that hearsay evidence, if not objected to, is admissible and may be considered, along with other evidence, in determining whether a submissible case has been made.

It is uncontroverted that Prudden was the agent of the defendant and was acting within the scope of his authority at all of the times he contacted the Hills, investigated the claim and discussed it with them. His declarations in the nature of admissions against the interest of the defendant made within the course and scope of his employment while his investigation of plaintiff’s claim was pending and made in direct connection therewith and as a part of the transaction itself are evidence in the case and may be considered as such. Roush v. Alkire Truck Line, Mo.Sup., 299 S.W.2d 518; Baker v. Aetna Casualty & Surety Co., Mo.App., 193 S.W.2d 363; Shelton v. Wolf Cheese Co., 338 Mo. 1129, 93 S.W.2d 947, 952; 31 C.J.S. Evidence § 343, p. 1113 ff. Defendant cites Levy v. American Automobile Ins. Co., 31 Ill.App.2d 157, 175 N.E.2d 607, but in that case the insurance company remained silent and never admitted or conceded the noninsurance of the automobile in question. We find no merit in defendant’s first contention of error.

Defendant’s second contention concerns that portion of the policy providing, “for the purpose of this coverage, determination as to whether the insured or such representative is legally entitled to recover such damages, and if so the amount thereof, shall be by agreement between the insured or such representative and the company or, if they fail to agree, by arbitration, * *."

“ARBITRATION.

“If any person making claim hereunder and the company do not agree that such person is legally entitled to recover damages from the owner or operator of an uninsured automobile because of bodily injury to the insured, or do not agree as to the amount of payment which may be owing under the Uninsured Motorists Coverage, then, upon written demand of either, the matter or matters upon which such person and the company do not agree shall be settled by arbitration in accordance with the rules of the American Arbitration Association, and judgment upon the award rendered by the arbitrators may be entered in any court having jurisdiction thereof. Such person and the company each agree to consider itself bound and to be bound by any award made by the arbitrators pursuant to this paragraph.”

On April 16, Prudden wrote plaintiff's counsel a letter mentioning, among other things, that if we “are unable to negotiate a settlement, you realize this matter will be handled through ‘the American Arbitration Association as described in our policy * * *.'"

Even if we treat the above letter as a written demand for arbitration of the matters upon which they do not agree, (such matters being then unknown) rather than as a written reminder of the policy provisions, which is what we think it was, defendant’s contention concerning arbitration is without merit, and this because of Section 435.010, RSMo.1959, V.A.M.S. which provides:

“Any contract or agreement hereafter entered into containing any clause or provision providing for an adjustment by arbitration shall not preclude any party or beneficiary under such contract or agreement from instituting suit or other legal action on such contract at any time, and the compliance with such clause or provision shall not be a condition precedent to the right to bring or recover in such action.”

This statute which has remained in substantially its present form since 1909 has been construed to make unenforceable that portion of contracts or agreements requiring arbitration as a condition precedent to the bringing of suit where, as here, one party, the insurer, denies liability or coverage. See, McManus v. Farmers Mutual Hail Insurance Company of Missouri, 239 Mo.App. 882, 203 S.W.2d 107; State ex rel. State Farm Mutual Automobile Insurance Co. v. Craig, Mo.App., 364 S.W.2d 343, 345-346; Arbitration in Missouri, 13 Mo.L.Rev. 170.

To escape the effect of this statute defendant now argues that it did not deny liability but only questioned the amount, which is subject to arbitration. However, this was not defendant’s trial theory and defendant did vigorously deny liability in its pleadings and during the trial below. It cannot now successfully change its trial theory and pattern.

Defendant’s contention that the plaintiff failed to attempt to agree as it contends the insurance policy requires is also without merit. Aside from serious questions as to the meaning and enforceability of such a clause which we do not pass on, there is considerable evidence of such an attempt, by plaintiff and by her counsel. Although plaintiff’s counsel broke oil negotiations and filed suit, the evidence indicated the parties were not in agreement and were so far apart in their positions as to make it seem futile to discuss the matter further. See, State ex rel. State Farm Mutual Automobile Insurance Co. v. Craig, supra, 364 S.W.2d loc. cit. 345(5).

We turn to defendant’s final contention —that it was error to permit defendant in a contract action to offer evidence to establish the negligence of a third party and damages therefor and to submit those issues to a jury. In essence defendant’s contention is that plaintiff must first bring suit against the uninsured motorist and get a judgment against him before plaintiff is entitled to recover against defendant.

The cardinal rule in interpreting insurance contracts is that it is the intent expressed therein that is to control, and if the contract is reasonably susceptible of two or more interpretations that one which will sustain the insured’s claim must be adopted, since the language used in the policy is that of the insurer. A court is not permitted to rewrite or alter a written contract under the guise of judicial construction.

Does this policy provide that a judgment must be obtained against the uninsured owner or operator in order for the plaintiff to recover from defendant? Clearly it does not. Defendant-insurer has stated in the policy that it “will pay all sums which the insured or his legal representative shall be legally entitled to recover as damages from the owner or operator of an uninsured automobile * (Emphasis ours.) Additionally, in another policy clause an “uninsured automobile” is defined to include “a hit and run automobile” i. e. one against whom a judgment is not obtainable because the owner or operator is unknown. For decades insurance companies have been writing unsatisfied judgment policies and are knowledgeable in the art of specifically requiring an unsatisfied judgment as a condition precedent to their liability and to a suit directly against the insurer, if that is the insurer’s intent. Here, there is no language in the policy that requires an unsatisfied judgment to establish the legal liability, or the amount thereof, of the owner or operator of the uninsured automobile.

The defendant insurance company is not the insurer of the owner or operator of the uninsured automobile, and by its policy contract with plaintiff has agreed to pay plaintiff all sums which plaintiff is entitled to recover from the owner of the uninsured automobile. Plaintiff’s suit is based on its policy contract with defendant and plaintiff is entitled to directly sue defendant insurance company without being required to show an unsatisfied judgment as a condition precedent to recovery.

In a broad sense such a suit is comparable to a dispute between an insurer and the insured under a medical payment coverage clause in a collision insurance policy. The proper action is a suit by the insured directly against his insurance company. The fact that the defendant happens to be an insurance company and that insurance companies are not popular with juries nor treated kindly by their verdicts does not make it immune from being sued under its contract. Nor is such suit a tort action merely because the insured under the terms of the contract sued on must show he is entitled to recover damages from the owner or operator of an uninsured automobile.

In passing we note that in State ex rel. State Farm Mutual Automobile Ins. Co. v. Craig, 364 S.W.2d 343, 347, the Springfield Court of Appeals expressed a similar view, “To say in this case that the action (intervention) is premature because the insured has not yet established the legal liability of the uninsured motorist would in effect convert the ‘legally liable’ policy to an unsatisfied judgment policy and would promote the multiplicity of suits.”

For the reasons stated, the judgment is affirmed.

All concur.

      . Uninsured motorist coverage is new in the insurance field. For a collection of cases interpreting such coverage see, Risjord-Austin, Automobile Liability Insurance Oases, Chapter 62; 79 A.L.R.2d 1245; American Bar Association, Section of Insurance, Negligence and Compensation Law (1960) page 281 if; The Wisconsin Bar Bulletin, April 1963, page 15 ff; 5A Am.Jur., Automobile Insurance, par. 82.5.

      . As to agreements that merely provide a reasonable method of estimating or appraising the amount of damage, see Security Printing Co. v. Connecticut Fire Ins. Co., 209 Mo.App. 422, 240 S.W. 263; Dworkin v. Caledonian Insurance Co., 285 Mo. 342, 226 S.W.2d 846.


text:
    Dan TRUOG and Clyde Nichols, Incorporated, Plaintiff, v. ELBEL CONSTRUCTION COMPANY, Defendant, Red Wing Concrete Construction, Incorporated, Defendant-Appellant, Arizona Savings and Loan Association and Ray B. Lucas and Albert B. Colby, Co-Receivers, Respondents.
    No. 23851.
    Kansas City Court of Appeals. Missouri.
    Dec. 2, 1963.

      Charles C. Shafer, Jr., Kansas City, for appellant.
    James P. Tierney, Kansas City, for respondents.
   HUNTER, Judge.

This is an appeal from a judgment of the Circuit Court of Jackson County dismissing appellant, Red Wing Concrete Construction, Incorporated, (Red Wing) as a party defendant in a mechanic’s lien action for failure to prosecute and assert liens by required timely pleadings.

Because of the complex nature of the case a statement of background is helpful to an understanding of the issues involved. The original party was Dan Truog and Clyde Nichols, Incorporated, plaintiff, who filed mechanic’s liens against certain properties being developed by the Elbel Construction Company (Elbel), and then filed this suit in equity to enforce its mechanic’s lien as to the property here in question. Eventually the suit included scores of parties, lawyers, thousands of filed liens, petitions, cross petitions, answers, motions and pleadings.

Red Wing on October 16, 1959, filed over 100 liens against Elbel totaling approximately $32,000. However, this appeal involves only lien No. 23717 in an amount of less than $15,000. On that same date Red Wing employed an attorney to prosecute the various liens. On January 15, 1960, this attorney filed an application asking for an order joining Red Wing as a party defendant in this (and many other) case. On that same day the application was sustained by the trial court and Red Wing was made a party defendant.

Respondents, Arizona Savings and Loan Association and Ray B. Lucas and Albert B. Colby, co-receivers had foreclosed a deed of trust against certain Elbel properties including the lot in this case. It is the receivers’ contention in this (and all other Elbel actions) that its deed of trust had priority over all the mechanic’s liens, and that the foreclosure eliminated any right of the lien claimants. As a result of settlements, dismissals, assignments and other dispositions the only remaining parties to the action were the Receivers and Red Wing.

The issue on this appeal is aptly delineated by the contentions of appellant and respondent. Appellant claims its application to be made a party defendant is the timely commencement of an action as required by Section 429.310 RSMo 19S9, V.A.M.S., to preserve its lien and that it was not necessary for it to file any other papers or pleadings. Respondent claims the application to he made a party defendant filed by Red Wing did not constitute a pleading or motion within the meaning of Section 429.310 but rather was no more than an entry of appearance not followed by a pleading in due course; that such application to become a party defendant did not commence an action to preserve a lien as required by Section 429.170 RSMo 1959, V.A.M.S.; that Red Wing lost any right it might have had for' its failure to file any answer, cross-petition, or other pleading within six months after filing its lien; and that in any event Red Wing failed to prosecute its action to final judgment as required by Section 429.-170.

Section 429.170 RSMo 1959, V.A. M.S., provides: “All actions under sections 429.010 to 429.340 shall be commenced within six months after filing the lien, and prosecuted without unnecessary delay to final judgment; and no lien shall continue to exist by virtue of the provisions of said sections, for more than six months after the lien shall be filed, unless within that time an action shall be instituted thereon, as herein prescribed.” This Section makes it mandatory for a lien claimant to commence an action' within six months after filing the lien, and to prosecute same without unnecessary delay to final judgment. Dierks & Sons Lumber Co., v. McSorley, Mo.App., 289 S.W.2d 164.

But when and how is an action “commenced”? The answer; lies in Section 429.-310, “Any answer, or other pleading, or motion; or entry of appearance followed by pleading in due course, filed or made in any such equitable action by any mechanic’s lien claimant, within six months after the preliminary statement for the lien of such claimant has been filed * * * shall be deemed a commencement of an action by such mechanic’s lien claimant; * * *”

Specifically what Red Wing filed reads: “APPLICATION FOR ORDER OF THE COURT JOINING RED WING CONCRETE CONSTRUCTION, INCORPORATED AS A PARTY DEFENDANT.

“Comes now the petitioner, Red Wing Concrete Construction, Inc., a Missouri Corporation by it’s attorney Rogers E. Hopper and shows the Court that it has filed Mechanic Lien No. 23717 in the office of Circuit Clerk of Jackson County at Kansas City on October 16, 1959: that on October 8, 1959, plaintiff filed it?s suit in Equity to foreclose Mechanic Lien on said Lot 7, Block 5, Vineyard Hill East and has failed to join your petitioner.

“Wherefore, your petitioner prays the court to order your petitioner joined as Party Defendant.”

Can the above application for an order of the court to make Red Wing a party defendant reasonably be construed to be an “answer, or other pleading, or motion, or entry of appearance followed by pleading in due course” as required by Section 429.310 to “commence” an action within six months after filing the lien? We think not. It is at most merely an application for Red Wing to be made a party defendant in the case. That was the sole purpose for which it was filed as apparent by its context. It fully served that purpose when the trial court acted on it and made Red Wing a party defendant. Red Wing then being a party defendant still had the duty by appropriate pleading as a party defendant to assert those facts necessary to entitle it to a valid lien and to the relief or judgment it seeks. Supreme Court Rule 55.06 V.A.M.R. provides, “A pleading which sets forth a claim for relief, whether an original claim, counterclaim, cross-claim or third-party claim, shall contain (1) a short and plain statement of the facts showing that the pleader is entitled to relief, and (2) a demand for judgment for the relief to which he deems himself entitled. * * * ”

The “answer, or other pleading, or motion” mentioned in Section 429.310 clearly means an answer, pleading or motion filed by a party to the suit, and not some preliminary motion merely seeking an order to make one a party.

Any other view would be unreasonable and lead to countless difficulties. The only item on which Red Wing relies as its pleading which commenced its action is its application to be made a party defendant. If the Receivers had wanted to attack this document, which Red Wing contends is a sufficient statement of its lien claim and priority right to be the commencement of an action, could they have filed a motion to make more definite and certain (Supreme Court Rule 55.34) or to dismiss for failure to state a claim upon which relief may be granted (Supreme Court Rule 55.33) and thereby test its sufficiency as a pleading stating sufficient facts to entitle the pleader to relief — or differently stated, to show a cause of action by Red Wing ? The answer is no, and this because Red Wing’s application is not a pleading by a party to the case who is asserting therein its claim for relief entitling it to a judgment but is merely an application for an order to be a party to the suit.

As so well stated in Wiles-Chipman Lumber Co. v. Pieper, Mo.App., 176 S.W.2d 50, 53, “ * * * in an equitable action * * * one of many claimants may bring the action and make all other claimants, as well as the contractor and owner, defendants. In such case the claimants, although designated as defendants by virtue of the statute stand in the position of plaintiffs in so far as their relation to the contractor and owner are concerned; * * See, also, Richards Brick Co. v. Wright, 231 Mo.App. 946, 82 S.W.2d 274, 278. Certainly a claimant of a lien which is filed of record after the commencement by another of an equitable action to enforce a lien which may affect his lien rights must in some appropriate pleading therein timely assert his claim. See, State ex rel. Erbs v. Oliver, 361 Mo. 836, 237 S.W.2d 128; State ex rel. Great Lakes Steel Corp. v. Sartorius, 249 S.W.2d 853; Maas v. Dreckshage, Mo.App., 244 S.W.2d 397. We need not here decide just how specifically he should allege his claim and pray for relief, or what right he might have to amend his pleading in which he endeavored to assert his lien rights to make it more definite and certain. Here there is no pleading whatsoever by defendant after he became a party. Nor is there any pleading except one seeking an order to become a party. See, Dierks & Sons Lumber Company v. McSorley, Mo.App., 289 S.W.2d 164.

The inescapable conclusion is that under the facts before us appellant Red Wing has failed to comply with the mandatory requirements of Section-429.170 necessary to preserve its alleged lien and that any lien it may have had ceased- to. continue to exist beyond six months after it was filed because no action was instituted or commenced thereon as contemplated by the statute.

In so saying we have considered defendant’s contention that Section 429.280 (2) RSMo 1959, V.A.M.S. gives a lien claimant whose fights are not disclosed at the time of the action the right upon application to be made a party at any time before final judgment and entitled to their rights in the proceeds without doing anything further. Section 429.280(2) must be read in the light of and harmonized with Sections 429.310 and 429.010, and as so viewed does not permit a lien claimant to be deemed to have commenced a timely action merely by the filing of an application to be made a party to an action without doing anything further. We think the contention of defendant if accepted would in effect emasculate the meaning of Sections 429.101 and 429.310 and be contrary to the legislative intent expressed in the three sections when they are viewed as a related group.

Having reached the above expressed conclusions it is unnecessary to examine respondent’s remaining contention to the effect that Red Wing failed to prosecute his action without unnecessary delay to final judgment.

We have considered respondent’s motion to dismiss the appeal for alleged failure of appellant’s brief to comply with the requirements of Supreme Court Rule 83.06, and have overruled it. The judgment is affirmed.

All concur.

      . We believe it necessary to explain that Red Wing’s present counsel was not employed until December 12, 1962, and is in no manner responsible for any prior neglect or inattention to Red Wing’s case. In fact present counsel immediately after his employment obtained special leave to file an appeal out of time, and has with great ability and skill endeavored to rescue his client from the legal position in which he found it at the time of his employment.


author: MAUGHMER, Commissioner.

text:
    Robert J. BADER, Respondent, v. Walter B. HYLARIDES, Appellant. HARTFORD FIRE INSURANCE COMPANY, a Corporation, Respondent, v. Walter B. HYLARIDES, Appellant.
    No. 23875.
    Kansas City Court of Appeals. Missouri.
    Dec. 2, 1963.

      Errol Joyce, Brookfield, James J. Wheeler, Keytesville, Robert N. Jones, St. Louis, for appellant.
    George S. Thompson, Salisbury, W. K. Gibson and Martin, Gibson & Gardner, Se-dalia, for respondents.
   MAUGHMER, Commissioner.

This is a consolidated action against the defendant Walter B. Hylarides to recover damages resulting from an automobile collision. The plaintiff Robert J. Bader had a verdict in the sum of $10,000 for personal injuries. The plaintiff Hartford Fire Insurance Company had the verdict for $1500 covering property damage to its automobile which Bader was driving.

The accident occurred in Linn County, Missouri, about 11:30 a. m. on November 13, 1957. Bader was driving a 1957 Ford sedan (owned by Hartford) 'in a northerly direction on State Highway 11, and at a speed which he estimated to be about 50 to 55 miles per hour. Defendant Hylarides, accompanied by his wife, was driving a 1952 Chevrolet sedan south on this highway. Defendant attempted to turn left into a farm driveway to the Hannick place. This highway was black-top and 20 feet in width. There had been rain during the morning and the roadway was wet with a thin coat of mud.

Defendant said he had slowed speed to* less than 10 miles per hour, gave a left turn light signal and got one wheel into the northbound lane when his wife said: “Here comes a car”. Defendant stated he had not seen plaintiff’s vehicle approaching from the south although he could have seen more .than 200 feet in that direction. Bader testified that when defendant started to turn left he was 175 to 180 feet away; that he immediately applied his brakes and skidded his wheels for 120 feet, but the front end of his vehicle hit the right front of defendant’s; that when the cars came to rest both were headed generally east and partly in the Hannick driveway.

Sergeant Conyers of the Highway Patrol investigated the accident and made some measurements. He quoted defendant as saying: “I was turning into the driveway and I didn’t see the car until he was right on me. I couldn’t get back on my side or get out of the way”. Conyers took Bader to the Bothwell Hospital in Sedalia.

Plaintiff at the time was the operator of an insurance agency. He was on the way north from his home in Sedalia to Milan, where he planned to stop on business and then go on to Memphis for quail hunting. There was no dispute as to Hartford’s ownership of the Ford. Neither side objected to the consolidation of the two cases for trial.

Defendant on appeal raises no question as to liability. Therefore our brief résumé as to how, why and where the accident occurred seems to be in sufficient detail and we shall consider the assignments of error presented by defendant on this appeal.

The charge that the trial court erred in permitting plaintiff to impeach defendant, whom plaintiff had called as a witness, was abandoned in the oral argument here.

Assignment 3 predicates error upon counsel’s argument to the jury that “the demineralization of bone resulted from the collision, despite the fact there was no evidence to connect the two”. Assignment 5 charges error in permitting Sergeant Con-yers to state what the parties had told him at the scene and a few minutes after the 'accident “as to who was driving, what, where and when”. The transcript shows that on his direct examination Conyers testified that the defendant Hylarides had told him: “I was turning into the driveway and I didn’t see the car until he was right on me. I couldn’t get back on my side or get out of the way”. This testimony was properly received as a statement against interest or as part of the res gestae, or both. Besides, defendant said almost exactly the same thing in this own oral testimony. It was on cross-examination that Sergeant Conyers was asked and stated what plaintiff told him at the .scene. It was not error to receive this testimony from the patrolman. Dr. Stewart testified that the x-rays taken December 5, 1960, revealed “spotty deminerali-zation” about the knee, which condition was not apparent in the earlier x-rays. We believe counsel’s argument claiming the de-mineralization resulted from the collision was not improper.

■ [4] In addition, Rule 83.13(a) V.A.M.R. Rules, provides that apart from certain questions not involved here “no allegations of error ■ shall be considered in any civil appeal except such as have been presented to or’ expressly decided by the trial court”. In Stremming v. Holekamp Lumber Co., AIo.App., 238 S.W.2d 31, 37, appellant contended the court erred in overruling defendant’s objection to certain remarks made by plaintiff’s counsel in his jury argument. The appellate court said: “In its motion for new trial defendant made no complaint with reference to the above argument or the court’s ruling with respect thereto. We are, therefore, precluded from considering appellant’s complaint here”. See also Mallory Motor Co. v. Overall et al., Mo.App., 279 S.W.2d. 532, 535, and Myers v. Karchmer et al., Mo., 313 S.W.2d 697, 701. Appellant says Assignments 3 and 5 are preserved in the motion for new trial under the broad statement that “The court erred in admitting irrelevant, incompetent, illegal, hearsay, immaterial, prejudicial and highly inflammatory evidence and testimony * * ”. We doubt that this specification meets the requirement of Rule 83.13(a) supra, that “no allegations of error shall be considered * * * except such as have been presented to or expressly decided by the trial court”. Both of these assignments are overruled.

Appellant asserts the court erred in receiving the opinion evidence of the witness R. P. Jackson as to the value of the Ford automobile immediately before and immediately after the collision. Mr. Jackson is the Ford dealer in Salisbury, Missouri. He has been an automobile dealer for the past 30 years. He clearly qualifies as an expert on the value of Ford automobiles. He had never seen this particular automobile. Other testimony, however, showed it was a 1957 V-8 Fairlane Ford, with safety package, good tires, in good mechanical condition, automatic transmission, radio and heater, bought in August, 1957, and had been driven 9,000 miles. Assuming all these facts, the witness expressed it as his opinion that the vehicle was worth $2200. We believe he qualified as an expert and the court was justified in receiving his opinion as to the value of the car before the accident. He then was directed to assume the Ford had been in a collision; that the frame was bent, the grill, radiator, fenders, hood, left front wheel, front bumper, headlights and left door frame had been damaged as a result and was then shown a picture of the vehicle taken just after the accident. Based upon these assumptions and his observation of the picture, he was permitted to state his opinion that the damaged car was worth six or seven hundred dollars. On cross-examination Mr. Jackson admitted he would be glad to buy at this price, saying: “I am making a little money on it”. We quote in part from the opinion of the Supreme Court in Myers v. Karchmer, 313 S.W.2d 697, 707, 708. “ * * * and that the testimony of a certain witness, as to the value of the truck before and after the collision, was incompetent because the witness, admitted to be an expert as to truck values, was not qualified to testify concerning this truck’s value, not having seen it before it was damaged or immediately after the collision. He did see it later, before repairs were made. His opinion was given in answer to a hypothetical question, since there was other evidence that the truck was a 1955 Chevrolet two-ton truck having a combination stock and grain bed and in average or above condition when wrecked. Photographs showing the condition of the truck after the collision were also in evidence. * * * Considering the evidence in the record in a light favorable to plaintiff, we find it sufficient to sustain the giving of the instruction”. We do not believe the court abused its discretion nor erred in receiving the expert opinion of this witness and the assignment is overruled.

Finally appellant asserts the case should not have been submitted because (1) the evidence was insufficient to support a finding of causal connection between the collision and plaintiff’s injuries; (2) the verdict is grossly excessive and (3) there is no evidence based upon “reasonably medical certainty” that plaintiff’s injuries were caused by the automobile accident rather than by a gunshot wound, and plaintiff has not sustained the burden of so showing. Concisely stated, this assignment asserts the evidence was insufficient to authorize submission to the jury and the verdict is grossly excessive.

Plaintiff was 37 years of age at the time of the accident. On February 27, 1945, he had been shot in the right hip with a rifle fired by a German sniper. He was hospitalized in Germany, Belgium, France, England and finally, in Oklahoma, until June, 1945. Veterans Administration doctors recommended surgery to immobilize the hip, which plaintiff refused. He was finally discharged from the convalescent hospital at Camp Carson, Colorado, on October 1, 1945. In 1948, the Veterans Administration made an award rating Mr. Bader’s disability as 60 percent permanent partial by reason of his hip injury.

After leaving the Government hospital in 1945, Mr. Bader attended a business college for 18 months, then sold automobiles for a short time and after that sold and collected on a debit insurance route. He operated a milk truck, delivering milk for Yellow Meadow Dairy. In 1954, he started working for the Hartford Fire Insurance Company as a part time hail adjuster. After completion of training with this company and in June, 1956, he began working for them “full time”.

Plaintiff testified that he “walked his route” in Omaha on the insurance debit; that he delivered milk and other dairy products from his truck to customers’ houses, while he operated the milk truck. He said he wore a hip brace from 1946 to 1948, but not thereafter. Plaintiff asserted that his duties as hail insurance adjuster required him to walk over fields inspecting damage to crops. There was testimony from social associates and from himself that prior to the automobile collision plaintiff also played golf, belonged to a bowling league, danced, played badminton and “played with the kids”.

Plaintiff described his apparent injuries in the accident as “cut along the left forehead and my knees from the dash was quite severely bruised, one of them was cut and by the time we got to the hospital the blood had run to my stocking. My elbows, when they went forward on the steering wheel, they caught and were black and blue and red and I was stiff and sore all over and I did have some pain in my back, and of course, my hip too bothered me quite a bit”. “ * * * I had also sprained my right ankle”. Plaintiff was rather continuously under medical care thereafter. He had two periods of hospitalization — from November 13, 1957 to January 1, 1958, and from October, 1959 to January 20, 1960, when surgery was performed on his hip. His employer company continued to pay his salary. Plaintiff has resumed his employment in part, at least. He says he now calls on agents and collects premiums but does not adjust losses. Plaintiff says he suffered pain and used crutches or a cane to walk with until June, 1961; that since the collision he has been unable to sleep and does most of his sleeping sitting in a chair. He no longer bowls, plays golf, badminton or goes dancing.

Dr. Robert H. Stewart and Dr. Donald C. Porter, both of Sedalia, who examined and treated plaintiff at his request, testified in person. The medical reports of Dr. Harold V. Zuber and Dr. Rex L. Diveley, orthopedic surgeons in Kansas City, Missouri, were received in evidence. Dr. Stewart qualified as a radiologist and general practitioner. He took X-rays of the plaintiff’s pelvis and knees in November, 1957, which revealed “some swelling to the kneecap or patella”, but no disease of the bone, some “spotty demineralization” in the bones about the knee. He observed a “considerable amount of arthritis involvement in pictures taken April 16, 1962, and injuries resulting from an operation which had been done in the right hip”.

Dr. Porter has been plaintiff’s family physician for years. He saw him in the Bothwell Hospital in Sedalia just after the automobile accident. Plaintiff complained of pain in both knees and had a laceration on his left forehead. This doctor saw and examined plaintiff intermittently, but rather regularly thereafter. In response to a hypothetical question covering the collision and plaintiff’s knees striking parts of the automobile, this doctor said: “A strong force hitting the knee, it probably would aggravate the pre-existing arthritis”. Again he expressed his opinion that a “blow on the right knee probably would aggravate this condition” (arthritis), and later: “It is my opinion that it did”.

From October, 1959 until June 20, 1960, plaintiff was in the Veterans Hospital in Kansas City and hip surgery was there performed. The record contains neither medical reports from the Veterans Administration nor any testimony from any of its physicians. However, X-rays taken thereafter show that the surgery consisted of removal of the head of the femur and placement of the neck of the femur in a vitalium cap. This operation is called or-thoplasty.

The medical report of Dr. Harold V. Zuber, orthopedic specialist who examined plaintiff on February 14, 1958, is in evidence. This report recites the fact of the gunshot wound in 1945 and the automobile accident in 1957. Dr. Zuber reported a mild limp in the right leg, and described “a healed transverse scar on the left forehead extending to the hairline and measuring 2% inches in length”. This report states that if it were not for the definite history of trauma to the head of the right femur, the changes shown by the X-rays could very well pass as being present since the early ’teens with gradual degenerative changes. He found no evidence of bone or joint pathology. His conclusion was that the plaintiff was suffering from traumatic arthritis involving the right hip joint, secondary to a gunshot wound sustained in World War II.

The report of Dr. Rex L. Diveley, who examined plaintiff on January 16, 1959, lists complaints at that time as pain and stiffness in both knees and the right hip and at times pain in the lower back. X-rays were taken. He found no injury to the knees and expressed the opinion that the knee strain was coming from hip pathology. His report concluded with this statement: “Whether or not this accident which he sustained some time ago has aggravated the condition of his right hip and back is rather problematical”.

In Dennison v. Whaley, 285 S.W.2d 73, 75, this court considered a hypothetical question put to a doctor wherein he answered that it was “possible” and “probable” that plaintiff’s condition resulted from the automobile collision. This court said:

“Furthermore, we cannot say that Dr. Humphreys’ answer to the hypothetical question was no substantial evidence whatever, in view of the other facts in evidence such as the admitted casualty and certain physical injuries both to the car and to plaintiff immediately observed at the place of accident by defendant and others, (citing cases)”.

The St. Louis Court of Appeals in Baumhoer v. McLaughlin et al., 205 S.W.2d 274, 281, ruled where the petition alleged aggravation of a pre-existing arthritic condition by a fall, the opinion of a doctor based on plaintiff’s present complaints, the fact of the fall and X-rays was competent and amounted to substantial evidence.

Appellant has cited numerous cases, many of which are suits involving workmen’s compensation. In many of those cases the appellate court affirmed the finding of the Commission on questions of fact. This is required when there is substantial evidence supporting the conclusion reached by the Commission. In two other workmen’s compensation cases called to our attention the employee had a fall on the job but died from a heart attack. The courts held in those instances that it had not been proved that the death or injury was caused by an accident arising out of the employment. Those cases are not in point.

Reviewing the evidence in this case we find the admitted collision, physical injuries to plaintiff and damage to his automobile, his periods of hospitalization finally leading to a hip operation, his substantially reduced physical activities after the casualty as compared to such activities before the accident, his complaints as to pain and inability to sleep and the permanent scar on his forehead. The medical evidence reveals a partially disabled hip and an arthritic condition which, as shown by the X-rays, became progressively worse after the accident. Dr. Diveley expressed no positive opinion either way as to whether or not the accident aggravated his hip and back condition, saying merely that it was “rather problematical”. Dr. Porter was asked if the blow on the right knee would “aggravate this condition” and replied: “It is my opinion that it did”. We believe that plaintiff made a submissible case, that substantial evidence — medical and lay — was presented and that the court did not err in refusing to take the case from the jury.

Appellant’s final contention is that the verdict is grossly excessive. The criterion for determination of this question was recently restated by the Supreme Court when in Kiger v. Terminal Railroad Association of St. Louis, 311 S.W.2d 5, 15, it quoted with approval as follows from Burr v. Kansas City Public Service Company, 365 Mo. 115, 276 S.W.2d 120, 127:

“ ‘There is no precise method for determining the maximum award which the evidence in this case will support. Each case must be considered upon its own peculiar facts. Due regard should be given to the purchasing power of the dollar, to the rule of reasonable uniformity of awards for similar injuries and to the fact that the jury and the trial judge were in a better position than this court to measure an award of reasonable compensation, as well as to the fact that the trial court has approved the verdict in question.’ ”

We do not believe the award here is excessive under the evidence and we shall not disturb it.

Finding no reversible error, the judgment is affirmed.

SPERRY, C., concurs.

PER CURIAM:

The foregoing opinion of MAUGHMER, C., is adopted as the opinion of the court.

All concur.


author: BROADDUS, Presiding Judge.

text:
    STATE of Missouri, Respondent, v. Jose A. NEGRON, Appellant.
    No. 23810.
    Kansas City Court of Appeals. Missouri.
    Dec. 2, 1963.
    Crouch & Fitzgerald, Warrensburg, for appellant.
    David J. Dixon, Pros. Atty., Johnson Co., Warrensburg, for respondent.
   BROADDUS, Presiding Judge.

This is an appeal by defendant from a judgment based upon a jury verdict finding the defendant guilty of an open and notori- ■ ous act of public indecency, grossly scandalous, and assessing punishment at six months in the county jail.

The State’s evidence showed that the prosecuting witness, Mrs. Sue Ann Loveall, lived at 212 Ming Street, Warrensburg, Missouri, in a one-story house which was located approximately two blocks south of the railroad tracks. This house was located approximately five or six houses from a place where the defendant had previously resided in Warrensburg at 202 Ming Street. The Loveall house faced north on Ming Street and the bedroom windows faced south on a porch on the south of the premises. Mrs. Loveall stated that she had been ill that evening and uncomfortable as a result of her pregnancy, and because of this discomfort, she was sitting up on the bed. She heard a noise like a Venetian blind moving in the bedroom where she was resting on the bed with its head to the windows opening onto the porch on the south. It sounded like the bed had bumped the Venetian blinds. When the noise was repeated, Mrs. Loveall yanked the blind to the very top. The window was up, and a man was standing outside the window. The man was just outside the window, and the light was shining from the window where the witness was and the next window also. “He had himself exposed and his privates in his hand and he was playing with himself.”

The witness told the man to leave once or twice and said she would get a knife. The man responded by saying: “Wait just a minute,” and pointed to himself. At that time the witness was facing south and the man was at the corner of the window, angling toward the witness, Mrs. Loveall. She had a clear view of his face.

Mrs. Loveall positively identified the defendant as being the man in the window on that occasion and had no doubt as to the identification. She stated that the defendant stayed on the porch for approximately a minute and described him as having dark hair, a dark complexion and wearing a light jacket.

Mrs. Loveall was subsequently, on February 19 of the same year taken to view the defendant whom she then identified as the person she had seen on her back porch on the evening of January 5.

The defendant testified in his own behalf and denied that he had exposed himself in the presence of Mrs. Loveall. He also introduced evidence of his previous good character.

Defendant’s first contention is that the information charges the offense occurred on the 4th day of January, 1962, and the proof elicited from the witness was respecting an occurrence in the early morning hours of January 5th, that, without amendment, this constitutes such a variance as to amount to prejudicial error.

A case very similar to the case at bar is State v. Lakin, Mo., 177 S.W.2d 500. In that case the State alleged the commission of the offense on or about the 16th day of May, 1942, and the proof affirmatively showed that the offense occurred on May 17th in the early morning hours. The court denied appellant’s contentions respecting error in the admission of evidence concerning the offense occurring on the morning of May 17th and cited many cases concerning the fact that time was not of the essence of the offense. There are many cases which hold that the State is not confined to the dates alleged in the information but may prove the commission of the offense on any date within the period of limitation. State v. Lee, 228 Mo. 480, 128 S.W. 987; State v. Gebhardt, 219 Mo. 708, 119 S.W. 350. The contention lacks merit.

Defendant next contends that the State did not make a submissible case. Defendant was charged under Section 563.150, V.A.M.S. which provides as follows:

“Every person * * * who shall' be guilty * * * of any open and notorious act of public indecency, grossly scandalous, shall, on conviction, be adjudged guilty of a misdemeanor.”

Defendant argues that the offense must be cpmmitted in a public place before a conviction can be sustained under this statute. The cases cited by the defendant, would, at first blush, appear to sustain this position, but in many of the cases cited by the defendant, the open and notorious act of public indecency was committed between two consenting parties, neither of whom was a complainant, and the question of whether or not the act was an act of public indecency turned on the question of other persons having seen the acts complained of.

A case decided by the St. Louis Court of Appeals, State v. Granger, 199 S.W.2d 896, squarely answers the defendant’s contention in this respect. In that case the defendant was charged under Section 4653 of the Revised Statutes of 1939, which is identical with Section 563.150. The facts in that case were that the defendant inserted an advertisement in a newspaper requesting help wanted, women, with a guaranteed remuneration. Two young women answered the advertisement and, without detailing the facts of the exact indecent behavior, the defendant took both of the young ladies into a room, and at various times only one of them was present during the alleged indecent acts. The court on the basis of that testimony, affirmed the judgment of conviction and said at l. c. 899 of 199 S.W.2d:

“The law requires that the information charge and the proof show that the indecent act was open and public. However, the proof of openness and publicity is met by testimony that the. act was committed in the actual presence of, or in such close proximity to, another person so that it may be known what is being done by- the use of the ordinary senses. State v. Parker, 233 Mo.App. 1037, 128 S.W.2d 288. A single act of lewdness or indecent behavior is sufficient to constitute the offense here charged, provided it be ‘open and notorious/ that is, committed in the presence of another person or in a public place. State v. Pedigo, 190 Mo.App. 293, 176. S.W. 556.”

It' is interesting to note that in the case last.cited, the information was very similar to the information in the instant case and required'„a, finding, as do the information and the’instruction in the instant case, that the act was,one of public indecency, grossly scandalous. .Upon the "facts of the case here, it is difficult for one to see how the acts'related by the witness, Mrs. Loveall, were not within the ruling of the Granger cáse. We rule the point against the defendant.

As a part of its case in chief the State called’ to the stand a Mrs. Niekrenz who testified that on the night of December 15, 1961, the defendarit committed a similar offense in-her presence. It is to be noted that this was twenty days before the time alleged in the information. The State seeks to justify the admission of the testimony of Mrs. Niekrenz under the holding of our Supreme Court in the case of State v. Kornegger, 368. Mo. 968, 255 S.W.2d 765. That case is distinguishable from the instant case. There the evidence admitted related to an “identical offense” on a different date “with the = identical little seven year’old girl.” '■

We are of the opinion that the testimony of Mrs. Niekrenz was inadmissible. We reach this conclusion by reason of the holding of the Supreme Court in the later case of State v. Atkinson, 293 S.W.2d 941. In that case the State offered the evidence of two boys that the defendant had sodomitic relations with them. We quote the following from the opinion.

“It is a well-established general rule that evidence is not admissible to show that the defendant is guilty of the commission of other independent crimes, either as foundation for a separate punishment, or as aiding the proof that he is guilty of the one charged, and this is true even though they are of the same nature as the one charged in the indictment. State v. Spinks, 344 Mo. 105, 125 S.W.2d 60; State v. Bowman, 272 Mo. 491, 199 S.W. 161. There are, however, a number of exceptions to this general rule. ‘Evidence of other crimes is always admissible when such evidence tends directly to establish the particular crime, and it is usually competent to prove the motive, the intent, the absence of mistake or accident, a common scheme or plan embracing the commission of two or more crimes so related to each other that proof of one tends to establish the others, or the identity of the person charged with the commission of the crime on trial.’ 20 Am.Jur., Evidence, Section 310, page 289.
“Actually,- the contention here presented by defendant has already been ruled favorably to him by this court in a companion case against this same defendant, which was decided after the trial of the instant case. State v. Atkinson, Mo.Sup., 285 S.W.2d 563.
* * * * * *
, “In the case now tinder review the learned Attorney General requests that we reexamine the ruling in the Atkinson case, supra, in the light of certain arguments that were not advanced by the State in that case. In the instant case it is said that the facts call for the application of a recognized exception to the rule under consideration, i. e., that the evidence in question would tend to show that the defendant committed the crime with which he is charged. Respondent points to the fact that the evidence indicates that defendant followed substantially the same pattern in his dealings with each of these three boys.
******
“Essentially, as we understand respondent’s argument, it is sought, on the issue before us, to distinguish the instant case from other criminal cases because of the nature of the crime of sodomy. This theory is well stated in respondent’s brief as follows: ‘So strange and unusual are the acts of homosexuality, so far outside the ordinary pattern of male conduct, that a man who is proven to have committed the act with one or more persons would certainly be deemed to be much more likely to have committed the act with yet another person, and so proof of the act .with persons other than the prosecuting witness would certainly tend to prove.that the act was committed between the defendant and the prosecuting witness.’
' “Upon first consideration there would appear to be some merit in this argument. However, it would seem that the same reasoning applies when the exclusionary rule is considered in connection ■with other types of crimes. Moreover, the weight of authority does not support this contention. ‘Where sodomy is the crime charged, evidence * * * that accused committed the same offense, or had improper relations with a person other than the one named in the indictment, is a rule held to be inadmissible * * *.’ (Citing many authorities)
“Furthermore, in considering this question, it should be noted that to admit proof of crimes other than the one with which the accused is charged would require him to defend any number of charges about which the indictment gives him no information. Such proof, especially as to crimes such as sodomy, would also be likely to have a decidedly prejudicial effect upon the jury. In this connection it may be noted that we have heretofore held that in cases involving statutory rape, it is reversible error to admit proof that the defendant had committed the same crime with a person other than the prosecuting witness. State v. Bowman, supra.
“A consideration of the foregoing has caused us to conclude that our safest and most prudent course, in accordance with principles of justice and fairness, is to follow the weight of authority, as indicated by the cases heretofore cited, and adhere to the ruling in the Atkinson case, supra, thus refusing to extend the number and scope of exceptions to the general exclusionary rule so as to include the proof admitted in this case.”

In the prior Atkinson case appears this significant language, 285 S.W.2d l. c. 567: “Indeed the state tacitly concedes that even in sex offense cases (where the rule has been greatly relaxed under the guise of exceptions) proof of the commission of another such offense with a person other than the prosecuting witness is generally inadmissible. Annotation 167 A.L.R 565-628.” (Emphasis ours) See, also 22A C.J.S. Crimnal Law § 691(35), pages 883, 884.

In fairness to the able trial judge before whom this case was heard it should be stated that this point was not properly raised, vQp preserved by defendant’s then attorney. However, we have reached the conclusion that it was plain error affecting the substantial rights of defendant and, in the exercise of our discretion, we have considered it. Rules of Criminal Procedure, 27.20(c).

Defendant also contends that certain testimony of the prosecuting witness was immaterial and incompetent. However, the question need not be discussed as it will not likely arise again on retrial.

The judgment is reversed and the cause remanded.

All concur.


text:
    Iva E. BASORE, Appellant, v. ALLSTATE INSURANCE COMPANY, a Corporation, Respondent.
    No. 23835-A.
    Kansas City Court of Appeals. Missouri.
    Dec. 2, 1963.

      Richard E. Graulich, Anthony J. Romano, Romano & Graulich, Kansas City, for appellant.
    John M. Kilroy, Don B. Roberson, Kansas City, for respondent.
   HUNTER, Judge.

Before us is a suit on the uninsured automobile coverage clause of an automobile insurance policy issued by defendant-respondent, Allstate Insurance Company, to William M. Basore whose wife Iva E. Basore, plaintiff-appellant, sought recovery in the sum of $5,000 for injuries she allegedly suffered while riding as a passenger in her husband’s automobile which was struck by a hit-and-run motorist. At the close of plaintiff’s evidence the trial court directed a verdict for defendant and this appeal followed.

The principal issues as developed in the briefs of the parties are (1) whether Mrs. Basore was an insured within the meaning and protection- of the uninsured automobile amendatory endorsement; (2) whether she, was required to and did prove she sustained any injuries at the time of physical contact between the hit-and-run automobile and the automobile she occupied; and whether she had complied with certain conditions contained in the policy.

In her petition for damages Mrs. Basore alleged the existence of Policy No. 10 522 358 issued by the defendant and her coverage under it. She also alleged the facts upon which she relied for her recovery. Defendant in its answer admitted the issuance of the policy, that it was in effect at all pertinent times, and pleaded specifically certain portions of it including Section II as follows: “Section II — Protection Against Bodily Injury By (Un)Insured Automobiles — -Allstate will pay all sums which the insured shall be legally entitled to recover as damages from the owner or operator of an uninsured automobile because of bodily injury, sustained by the insured, caused by accident and arising out of the ownership, maintenance or use of such automobile. Bodily injury benefit each person $5,000.00, each accident $10,000.00.”

At the commencement of the trial in his opening statement to the jury defendant’s counsel told the jury “there is what is written as uninsured motorist coverage, and this is the type of coverage in which the Insurance Company agrees to pay such sums as the insured may be legally entitled to recover, and I emphasize the words ‘legally entitled to recover’, from the owner or opera tor of an uninsured automobile.” He added that under the policy Mrs. Basore relied on “The coverage is specifically that the Insurance Company shall pay such sums as the insured would legally be entitled to recover.”

At the close of the opening statements plaintiff’s counsel asked the court’s permission to read into evidence a portion of the defendant’s answer to show coverage under the provisions of the policy. To avoid this defendant’s counsel admitted the issuance of the policy; that it was in force on May 24, 1960, the day of the accident; and that it afforded protection against bodily injury by uninsured automobiles under Section II of the policy, “subject to the terms and conditions of the policy.” Plaintiff’s counsel then read into evidence the mentioned Section II which read the same as set out above in defendant’s answer.

The evidence disclosed that Mr. and Mrs. Basore were husband and wife and lived together in their home in Independence, Missouri. On May 24, 1960, they were traveling in their family car, a 1957 Dodge, to a lakeside cabin they owned near Warsaw, Missouri. Mr. Basore was driving and she was sitting beside him.

As they proceeded down Number 7 Highway one mile west of Creighton a car from the opposite direction approached them. This car was partly across the center of the narrow road, a foot and a half approximately. Mr. Basore endeavored to avoid a collision but it struck the side of the Basore car which then went off the highway out of control, ran through a fence and struck a tree.

Mrs. Basore was asked: “Q. If your husband had continued straight on with the other car being into your lane a little bit would the cars have hit? A. They would have.” When the other car’s bumper hit Mr. Basore’s car, “it didn’t stop us, just brushed us, * * * and when we hit the shoulder the other car was gone * * * * * “Could you tell who was driving that car? A. No.”

Mr. Basore testified the oncoming car “hit” his car. He was asked, “Q. Had it not been for the contact with this other car could you have maintained your car on the highway? A. I think so. * * * I pulled over as far as I could get without hitting the lip, trying to dodge that car. * * * He kept easing toward me. * * Was your car entirely on the pavement when it happened? A. My car was right at the edge of the lip.”

Mrs. Basore was injured by the occurrence. Several highway partolmen came to the scene, and took her and her husband directly to the hospital at Harrisonville. There she was treated for her injuries and by ambulance sent on to St. Luke’s Hospital in Kansas City. Later, she was examined by Dr. Overesch and Dr. Filger, the defendant company’s doctors, as well as by several of her own choice.

Turning to the first mentioned issue, it is defendant’s position that since Mr. Basore was the only named insured, Mrs. Basore was not an insured under the uninsured automobile portion of the policy. Part of defendant’s contention involves the failure of plaintiff’s counsel to include in the introduction into evidence as a part of the written policy document (plaintiff’s Exhibit 11) and its amendatory endorsements that part which contains the Section II which defendant pleaded in its answer, told the jury about in its opening statement, admitted the existence of and which plaintiff’s counsel read into evidence at the commencement of the trial. We find no merit in any contention that Section II was missing from plaintiff’s presented case and that plaintiff is limited to the policy as it appears in her Exhibit 11.

That part of the insurance policy contained in Exhibit 11 contains a definition of terms and in part X, paragraph 1, provides: “The unqualified word ‘insured’, wherever used with respect to the liability insurance, includes the named insured, spouse, and * * *." And in paragraph 8 the provision is, “ ‘Spouse’ means the spouse of the named insured if a resident of the same household.”

It is our view of the policy that Section II thereof providing coverage to the “insured” against injury occasioned by uninsured automobiles must be read in the light of the policy definition of an insured as including his spouse residing in the same household. Or differently stated, the term “insured” by definition contained in the policy includes the named insured’s spouse residing with him. Since such a spouse is also an “insured” and Section II of the policy provides “the insured shall be legally entitled'to recover” etc., the spouse may maintain a suit as an insured under the uninsured automobile amendment to the policy. The uninsured automobile coverage is not limited to the named insured.

Defendant’s argument to the contrary,' at best, might be deemed to indicate that the policy is possibly ambiguous as to whom it covers as the insured in its uninsured automobile amendatory endorsement. If we were to find or assume such an ambiguity it would be of no aid to defendant which prepared the policy, for the rule is if the insurance policy is reasonably open to different constructions, since the insurer wrote the policy that construction which is most favorable to the insured must prevail. Utchen v. American Casualty Co. of Reading, Pa., Mo.App., 356 S.W.2d 102; Stewart v. North American Accident Insurance Company, Mo.App., 33 S.W.2d 1005.

Another principal issue involves a different portion of the uninsured automobile .amendatory endorsement. It provides, “Under Section II, the term ‘uninsured automobile,’ as defined, shall include a ‘hit-and-run automobile,’ and additional definitions under Section II are: ‘hit-and-run automobile’ means an automobile which causes bodily injury to an insured arising out of physical contact of such automobile with -the insured or with an automobile which the insured is occupying at the time of the accident, provided: (1) there cannot be ascertained the identity of either the operator or the owner of such ‘hit-and-run automobile’; (2) the insured or someone on his behalf shall have reported the accident within 24 hours to a police, peace or judicial officer or to the Commissioner of Motor Vehicles, and shall have filed with Allstate within 30 days thereafter a statement under oath that the insured or his legal representative has a cause or causes of action arising out of such accident for damages against a person or persons whose identity is unascertainable, and setting forth the facts in support thereof; and (3) at Allstate’s request, the insured or his legal representative makes available for inspection the automobile which the insured was occupying at the time of the accident.”

Under the above provisions was it necessary for plaintiff to prove she sustained her injuries at the very moment of and by the physical contact with the hit- and-run automobile, or, is it sufficient that she prove injuries sustained when the Basore automobile after being struck by the hit-and-run car went out of control and hit the fence and tree. Viewing the evidence and its reasonable inferences in the most favorable light to plaintiff, as we must in reviewing an appeal from a directed verdict and judgment against plaintiff, the evidence permits a jury finding that Mr. Basore’s automobile was still on the highway when it was struck a glancing blow by the hit-and-run automobile, causing it to go out of control onto the shoulder through the fence and hit the tree. While there is no evidence that any of plaintiff’s personal injuries occurred at the exact time of the impact of the two cars, there is substantial evidence that she was injured after the impact of the two vehicles and as the out-of-control car in which she was a passenger went through the fence and hit the tree.

The cardinal rule in interpreting insurance policies, as in any contract, is to ascertain and give effect to the intention of the parties as expressed therein. If the policy prepared by the insurer is open to different constructions, that which is most favorable to the insured must prevail. Overly technical and unrealistic constructions, or those which appear unreasonable or absurd in result, or which are not in accordance with the obvious objectives of the parties signatory are to be avoided.

As noted above, Section II of the policy provides “Allstate will pay all sums which the insured shall be legally entitled to recover as damages from the owner or operator of an uninsured automobile because of bodily injury, sustained by the insured, caused by the accident and arising out of the ownership, maintenance or use of such automobile.” (Emphasis ours.) Although the amendatory endorsement in defining an “uninsured automobile” to include a “hit-and-run automobile” additionally defines a hit-and-run automobile as meaning “an automobile which causes bodily injury to the insured arising out of physical contact of such automobile with the insured or with an automobile which the insured is occupying at the time of the accident. * * * ” it does not say that the insured’s recovery is limited to that personal injury occurring at the exact moment of the collision and that it does not also include injury occurring thereafter as the direct and proximate result of such collision. As we view it, personal injuries that are the direct and proximate result of the collision arise out of the use of the automobile and are caused by the accident. This view is in harmony with the quoted section allowing the insured to recover for all bodily injury caused by the accident and arising out of the use of the uninsured automobile.

In passing, we note that Mrs. Basore is admittedly an insured within the liability coverage of the policy, and had she been sued by another motorist could have called upon the defendant to handle her defense and pay any resultant judgment within the coverage amount against her. On the other hand if Mrs. Basore is negligently injured by an uninsured car defendant would refuse her coverages as not being the named insured. We think this view is not in accord with the purpose of the relatively new uninsured automobile coverage which is being placed in most liability insurance policies. Such coverage is intended to fill a gap in the protection of automobile liability insurance policy holders, and would not afford the needed, and we think intended protection if given the very restricted interpretation defendant now asserts. We find no merit in defendant’s contention.

Defendant also suggests plaintiff’s evidence showed a noncompliance with conditions precedent in that she failed to give a sworn statement, failed to adduce any evidence that the identity of the hit-and-run driver was not ascertainable; and failed to file with Allstate within 30 days a statement under oath that she had a cause of action against such hit-and-run driver, “and setting forth the facts in support thereof.” (Emphasis defendant’s.) However, we think there was evidence indicating either a compliance with these terms of the policy or a waiver thereof by the defendant.

Plaintiff testified in effect the hit- and-run driver was unknown to her, that she did not have a good look at him it happened so fast, and that he went on from the scene. Her husband gave similar testimony. Neither had opportunity to observe the make or other identifying features of the car. The State Highway Patrol came to the scene at once and was informed of the circumstances. Mr. Basore, his wife being hospitalized, immediately notified the defendant of the accident. According to defendant’s opening statement the Highway Patrol never issued a hit-and-run order on the occurrence, inferentially because of lack of information of the identity of that car and its driver. Mr. Basore stated that since the accident he had never been able to ascertain the identity of either the driver or owner of the hit-and-run car. It is tacitly conceded defendant never learned of the driver’s identity. This evidence, while somewhat scanty, is sufficient to overcome defendant’s contention that plaintiff failed to adduce any evidence that the identity of a hit-and-run driver was not ascertainable.

The day after the accident Mr. Basore went to defendant Allstate Insurance Company’s office in Kansas City, gave them notice of the accident, ánd while there filled out a form defendant requested him to execute. The next day while Mr. Basore was at the hospital visiting his wife an agent of defendant came to them and took a written statement from Mr. Basore. Also that day he was contacted by an agent of defendant who checked the damage on the Basore automobile and asked Mr. Basore questions as to how the accident occurred. Mr. Basore answered these questions, and the defendant paid for the repair of the car. Mr. Basore testified defendant has never asked him for any more information concerning the accident. There is no evidence indicating Mrs. Basore ever refused to give a statement or to answer questions asked by defendant. Additionally, defendant never requested a written report, apparently taking the position that there was no coverage of plaintiff as she was not a named assured. These and other facts in evidence which we need not specify in view of the well settled rules concerning waiver, are sufficient to support a finding of waiver of a written report as an alleged condition precedent to a right to recover. See 20A Am.Jur., Insurance, Sec. 1426, p. 536 and 1431, p. 542.

As stated in Thompson v. St. Charles County, 227 Mo. 220, 126 S.W. 1044, “It has been uniformly held by this court that under the allegations in the petition that all of the conditions of the policy have been complied with, proof of waiver is permissible, and is proof of performance, within the meaning of the conditions of the policy.” See, also, Supreme Ct. Rule 55.18, V.A.M.R. This allegation of compliance with all the conditions of the policy is contained in plaintiff’s petition. Even if more were deemed required, plaintiff should be accorded the privilege of amending to conform to the proof. We find no merit in defendánt’s last contention.

To a great extent we have been guided by defendant’s suggestions as to the respects in which plaintiff failed to make a case. We have also examined the transcript to determine if in any other respect that occurs to us plaintiff failed to make a submissible case and we have found none.

For the stated reasons, the judgment is reversed and the cause is remanded for a new trial.

All concur.

      . See, 5A Am.Jur., Automobile Insurance, Para. 82.5; 79 A.L.R.2d 1253; Kasdorf, Uninsured Automobile Coverage, Wisconsin Bar Bulletin (April, 1963) page 15; Article, American Bar Association, Section of Insurance, Negligence and Compensation Law (1960), page 281, 283; Risjord-Austin, Automobile Liability Insurance Cases, Chapter 62.


text:
    Alvae WINTERTON, Plaintiff, v. Boydie Clay VAN ZANDT, Defendant, Farmers Insurance Exchange, Garnishee. Alvae Winterton, Interpleader-Respondent, William J. Cason, Interpleader-Respondent, Kelso Journey, Interpleader-Appellant.
    No. 23706.
    Kansas City Court of Appeals. Missouri.
    Dec. 2, 1963.

      Kelso Journey, pro se, Samuel L. Trusty, Kansas City, for appellant.
    Delton L. Houtchens, Clinton, Thomas G. Woolsey, Versailles, for respondent.
   MAUGHMER, Commissioner.

An automobile owned and operated by the plaintiff Alvae Winterton, collided with one owned by a Mr. Fred Marsh, but which at the time was being operated and solely occupied by the defendant Boydie Clay Van Zandt. The interpleaders, attorneys William J. Cason and Kelso Journey, acting as counsel for Winterton, successfully prosecuted his suit for personal injuries and property damage to a final judgment in the sum of $14,250 against the defendant Van Zandt. Thereafter the plaintiff, by his attorneys, brought a garnishment proceeding based upon that judgment, against the Farmers Insurance Exchange, garnishee in the present proceeding. The purpose of the garnishment suit was to establish the liability of Exchange, as insurer of Fred Marsh, owner, for payment of that portion of the judgment ($12,500) which was not in excess of its coverage. Plaintiff was successful and the responsibility of the company was finally determined by the Supreme Court of Missouri (Winterton v. Van Zandt and Farmers Insurance Exchange, Mo., 351 S.W.2d 696).

As of January 15, 1962, the amount.of Exchange’s liability under the judgment, plus interest, amounted to $19,856.67. On this latter date, Farmers Insurance Exchange, as judgment debtor, and pursuant to its motion, was authorized to and did pay this total sum to the Circuit Court of Morgan County, in custodia legis, with that court undertaking to divide the money between Winterton, the judgment creditor, and his attorneys Cason and Journey. The judgment making such division is the case /presently before us for review. The only i1 controversy is between the two lawyers as to the division of the attorney fee, the total ^amount of which is not materially disputed , except that Cason thought their expenses were to be paid out of their fee, while it was Journey’s opinion that the expenses were to “come off the top” of the whole judgment.

The case was tried to the court without a jury. Apparently the trial court found that approximately $600 had been advanced by Mr. Journey to Winterton for suit expenses. The court took this sum “off the top” of the recovery, ordered that an item of $40.55 be paid to the Circuit Court of Lafayette County, approved expenses of Cason in the sum of $70, and expenses of Journey in the amount of $997.83. This left a net attorney fee of $9,124.15. The court awarded $3600 or just under 40 percent to Cason, and $5,524.15 or just over 60 percent to Journey. Judgment was entered accordingly. The only appeal is by Kelso Journey.

This being a case tried by the court, we are required to “review the case upon both the law and the evidence as in suits of an equitable nature”. But “[t]he judgment shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge of the credibility of the witnesses”. V.A.M.R., Civil Rule 73.01(d); Numer et al. v. Kansas City, Missouri et al., Mo.App., 365 S.W.2d 753, 758.

The statements, the direct and cross-examination of Mr. Cason and of Mr. Journey fill nearly 500 pages in the transcript. We shall endeavor to set forth the material facts, which were developed almost entirely by the testimony of the two contestants, in a condensed form.

Except for a period of four years in the navy, Senator Kelso Journey has since 1940, practiced law in Clinton, Henry County, •Missouri. During 1951 and 1952, he was Prosecuting Attorney for that county. About February 1, 1951, William J. Cason, who had just finished law school, became associated professionally with Journey in Clinton. Their offices were those of the Prosecuting Attorney in the court house.

These gentlemen agree that Cason was appointed Assistant Prosecuting Attorney, and that he was to help in the performance of the duties in that office. There was no written agreement but both agree that Journey gave Cason a minimum guarantee of earnings. Originally this guarantee was $175 a month, which, within a few months, was increased to $375. The association was not a partnership, nor was it a strictly employer-employee relationship. No Social Security assessments were deducted from Ca-son’s earnings. Journey paid the office expenses and reimbursed Cason for expenses incurred by Cason while working on Journey’s cases. Mr. Cason testified that under the arrangement he was free to accept legal business on his own, including representation of any clients who came to the office. Mr. Journey said that Cason was to take cases in Journey’s name, who would compensate Mr. Cason on the basis of “value of work done and the total responsibility assumed and work done in the entire matter”. In the fall of 1952, Mr. Cason was elected Prosecuting Attorney and on January 1, 1953, when he assumed office, the association or arrangement between these two attorneys was terminated.

The automobile accident out of which all this litigation arose occurred on September 9, 1952, in Henry County. The plaintiff Winterton was a resident of Iowa. The other vehicle, driven by defendant Van Zandt, was owned by one Fred Marsh, who was insured with the Farmers Insurance Exchange. The company denied that Van Zandt was authorized to use the vehicle at the time of the accident. That issue was litigated to the Supreme Court of Missouri and finally determined adversely to the company.

Shortly after the accident, Winterton, accompanied by the Sheriff of Henry County, entered the Journey-Cason law offices. According to Cason they “didn’t talk with the secretary”, but came directly to him and the sheriff said: “Bill, this man would like to talk to you”. Mr. Cason said he took a written contract in his name alone — 50 percent contingent — and immediately began work on the case from the standpoint of both the law and the facts. This written contract was not in evidence. Mr. Cason said that it and the whole file were turned over to Mr. Journey in 1957. However, all of the parties, including the plaintiff Winterton, agree that employment was on a 50 percent contingent fee basis.

Numerous unusual, if not rare, difficulties or questions were presented during the ten years’ duration of the Winterton claim and its litigation. The services of Mr. Francisco, a lawyer then practicing in Clinton, were utilized as an investigator. Mr. Francisco has been paid by Mr. Journey for his work in the matter. A few days after taking the employment contract, Mr. Cason prepared a petition for damages (Winterton v. Van Zandt) signing his name alone and filed it in court. Some question arose as to the validity of the service of the petition and summons upon the defendant. Mr. Cason and Mr. Francisco persuaded the defendant to sign an entry of appearance. The insurance company’s attorneys questioned the ethics of such procedure and instituted a declaratory judgment action in Jackson County against Ca-son, describing him as the agent for Mr. Winterton.

The Insurance Company took the position that Van Zandt’s use of the automobile at the time of the accident was without the consent, express or implied, of Fred Marsh, owner and its insured, and declined to defend the suit. Van Zandt did not defend and on January 23, 1953, plaintiff proved up and took a default judgment in the principal sum of $14,250. Mr. Cason was the only attorney., appearing for plaintiff at that time.

The judgment became final and garnishment proceedings on it were instituted against the Farmers Insurance Exchange. The original verdict was general although plaintiff’s petition asked $12,500 -or personal injuries and $2500 property damage. The “omnibus clause” in the insurance policy covering Marsh was limited to $10,000 for personal injuries and $2500 for property damage. Liability for payment to this limited extent ($12,500) was in the garnishment action sought to be imposed upon the company. Van Zandt’s testimony was needed and at that time he was incarcerated in the federal prison at Leavenworth, Kansas, so the case was continued. Before this last litigation was disposed of Mr. Cason was elected to the State Senate. The evidence indicates that because of the press of his senatorial duties or because he-doubted the strength of the case, or for other reasons, Cason urged a settlement of the matter, the insurance company having offered $7,500 and Cason thought that by negotiations this amount could be increased.

Soon after the garnishment suit was filed Cason says that for the first time he consulted with Journey and brought him into the case. Journey says he was of counsel all the time, knew about the case and had discussed it with Cason and Francisco. Francisco corroborated Journey in this respect. In any event, Journey took up the laboring oars at this period and made an argument on the matter before the Supreme Court. Cason also did work on the appeal and both were listed on the briefs as counsel. Cason also- signed an affidavit which Journey had prepared securing a legislative continuance in the Supreme Court. Senator Journey made a trip to Iowa to see Winterton, took Van Zandt’s deposition and worked on the whole matter particularly after the garnishment proceeding was instituted.

It is the position of appellant, Senator Journey, that: (1) on January 1, 1953, when this law practice association was terminated, all accounts were squared and Journey paid Cason in full for all services performed by Cason up to that time on the Winterton case and on all others; (2) Ca-son performed no service thereafter, although Journey concedes that if he did, he would be entitled to be fairly compensated therefor; (3) Cason abandoned the suit, urged settlement, and refused to actively participate in the garnishment litigation; (4) the $3600 fee allowed Cason is grossly excessive for the services rendered by him, based upon the time consumed and the responsibility assumed, and especially so since Journey supplied the office, including overhead and almost all of the expenses incurred in this particular litigation. Cason concedes that Journey participated as counsel in this litigation, particularly during the later years and expressed the opinion that the fee should be divided equally.

Appellant insists that the ruling in the case of McFarland v. George, Mo.App., 316 S.W.2d 662, precludes payment of even a part of the fee to Cason. In the McFarland case, plaintiff merely referred the case to defendant, performed no legal service therein and assumed no responsibility in the handling of the will contest. In its opinion the court referred to 42 V.A.M.S., Supreme Court Rules 4.34, which reads: “No division of fees for legal services is proper, except with another lawyer, based upon a division of service or responsibility”, and held that mere reference of the case was not sufficient to either justify or authorize participation in a division of the fee. In our particular case the parties tacitly agreed at least, and the trial court attempted to divide the fee, we think, not on the basis that Cason owned the contract, but rather on the basis of the services performed and the responsibilities assumed.

It is apparent, in our opinion, from the testimony of Cason and Journey, although they disagree absolutely in many respects, that both represented Winterton in this litigation. Although the original contract was in Cason’s name alone, Journey knew about the case, discussed it with both Cason and Francisco and at least after the garnishment proceeding was instituted, did much of the work in court and in the office. He also advanced most of the expenses. Likewise legal services were performed by Cason. He prepared the petition, made the court appearances in the original suit and likely did much of the brief work. That the trial court reached similar conclusions seems evident from the judgment entered.

It would be difficult to ascertain with complete precision and accuracy the proportionate contribution of each lawyer based upon his individual expenditure of time, legal services and assumption of responsibility. We believe that in this case both are entitled to participate in a division of the fee. The judgment below reflects a like conclusion. We believe that the division made by the trial court is supported by substantial, credible evidence and is not clearly erroneous. It is our opinion, too, that the trial judge for whom we-have deep respect, was in a better position’ to make the actual division than we are because first, he saw, observed and heard the'witnesses and second, much of the litigation from which the fee came was conducted before him.

We find no error in this matter. We approve the findings and conclusions of the trial court. The judgment is affirmed.

SPERRY, C., not participating.

PER CURIAM.

The foregoing opinion of MAUGHMER, C., is adopted as the opinion of the court.

All concur.