State Ex Rel. Western Automobile Insurance v. Trimble

249 S.W. 902, 297 Mo. 659, 1923 Mo. LEXIS 330

Opinions

JAMES T. BLAIR, J.

Certiorari. The writ brings here the record of the Kansas City Court of Appeals in Ben Pickel v. Western Automobile Insurance Company. The question presented is whether the decision of the Court of Appeals conflicts with previous controlling decisions of this court respecting! the construction of contracts of insurance.

It appears from the opinion of the Court of Appeals that the action before it is upon a contract of indemnity insurance issued to plaintiff by defendant, relator here. While driving the automobile covered by the policy Pickel collided with another automobile and injured Hanna and Walker. Pickel notified relator and it later declined to “assume any liability in the case.” Walker and Hanna sued Pickel, and recovered judgment. Relator continued to deny liability and did not appear. The judgment for Walker was for $600, and $93.40 costs. Hanna’s judgment was for $500, and $10.35 costs. The costs Pickel paid in cash. Attorneys’ fees in the sum of $300 “plaintiff paid by givihg his unsecured promissory note” the Court of Appeals states. “In payment and satisfaction of the two judgments plaintiff gave to each of the respective holders thereof his promissory note for the amount of the judgment, which note was duly secured by deed of trust on land belonging to plaintiff, whereupon the two' judgments were released upon the margin of the records thereof.” Pickel then sued relator upon the indemnity policy to recover the amounts of the judgments and expenses of litigation. There was a judgment for Pickel for the full amount. The company appealed.

The Court of Appeals held that the defense under the policy that Pickel was intoxicated when the collision occurred had been settled by the verdict rendered on conflicting evidence. The principal question in the Court of Appeals and the one the decision upon which is contended to have cotnflicted controlling decisions of this Court, grew out of the refusal of the trial court to give an instruction in the nature of a demurrer to Piekel’s evidence. The company, the opinion states, contended in the Court of Appeals “that the policy is not one of.indemnity for liability. ’ ’ The Court of Appeals held this was the correct construction of the policy. Of this holding relator: does not complain. The Court of Appeals then took up the question whether the course pursued by Pickel gave him a right of action on the policy for “loss resulting from liability.’ It sustained Pickel’s right to sue. This is the particular ruling said to be out of harmony with decisions of this court. In deciding this the Court of Appeals referred to and quoted freely from the policy and the by-laws of relator and founded its ruling upon their construction. Under'the decisions (State ex rel. Kansas City v. Ellison, 281 Mo. l. c. 674. et seq. and cases cited; State ex rel. Raleigh Inv. Co. v. Allen, 242 S. W. l. c. 78; State ex rel. Natl. Council v. Trimble, 239 S. W. l. c. 468), the contract and by-laws are thereby drawn into the opinion by reference and are for consideration in this proceeding as if they had been written into it in full. The Court of Appeals quotes nearly or quite all the pertinent provisions of the policy and bylaws and construes them to give a cause of action to Pickel, both for the amount of the judgments, the costs and attorneys’ fees. No question is made concerning the costs, which were paid by Pickel in cash. In discussing the question which remains, i. e. whether Pickel had a cause of action against relator for anything except the actual cash he had paid out, the several provisions of the policy and by-laws relevant to that question will be considered in the order in which they appear.

The principles applied by the Court of Appeals are that when an insurance “policy is open to two. constructions, the on:e most favorable to the insured will be adopted, as the language is that of the insurer; and conditions which narrow the range and limit the force' of the principal obligation, or tend to defeat it altogether, should be construed against the company where there is room for contention. [Mathews v. Modern Woodmen, 236 Mo. 326, 342-3.] ” The position of relator is that the language of the policy and by-laws is unambiguous and susceptible of but'one construction; that in such case the rules adverted to by the Court of Appeals cannot be employed to give the contract a meaning its language does not warrant; that the Court of Appeals did give it such a meaning and thereby brought its decision into conflict with the principle of the decision of this court in State ex rel. v. Ellison, 269 Mo. l. c. 420, and other decisions cited.

As stated by the Court of Appeals, “the insurance contract is made up of the policy and . . . the bylaws.” The part of the policy which is pertinent to the present question is: “In consideration of the application . . . and admission) fee paid, the ... association does hereby receive the said Ben Pickel . . . as a member . . . and upon the consideration .aforesaid and upon the further consideration and condition of the payment of all assessments . . . within the time provided for . . . there shall be payable to said member . . . such sums of money as are guaranteed to said member by the by-laws of this association, by reason of any claim or demand made upon said member on account of bodily injuries or death, suffered or alleged to have been suffered, by any person or persons, through th,e ownership, maintenance or use of the automobile enumerated and described in the member’s application.” The policy also- provides for losses resulting from dam age to property. It limits liability for loss for causing death of any one person to $2500, and fixes $5000 as the maximum liability for “any one accident.” Liability for loss by reason of damage to property in any one accident is limited to $500. Following this the following appears in the policy: “And any and all of such payments, or liability to pay, shall be and are, in accordance with and subject to each and all of the provisions of the by-laws of said association, . . . which said by-laws are hereby referred to and made a part hereof as fully as if they were recited at length over the signatures hereto affixed, . . . and the said Ben Pichel hereby and by the acceptance hereof, agrees to abide, and be bound, by said by-laws, and each of them.'” Sections 1 and 2 of Article I of the by-lawsi state the name and place of business of relator. Section 3 of Article I is to the effect that the “object of this association is to perfect and maintain a mutual association for the purpose of indemnifying and protecting its members against claims for loss and damage to persons and property of others arising from the ownership, use and maintenance of an automobile.” These three sections appear under an article title — “Name, Location, Object.” In Article VI of the by-lawrs are found the same provisions as to what constitutes the contract of indemnity, and as to the limitation upon liability, as appear in the policy or certificate. Article VIII of the by-laws is entitled “Indemnities or Benefits.” Section 1 of that article of the by-laws provides that “each member of this association will be indemnified for any sums paid by such member in satisfaction of any judgment imposed by law upon such member on .account of bodily injuries or death suffered, or alleged to have been suffered, by any person or persons through the ownership, maintenance or use of the automobile enumerated,” etc. Section %, of Article VIII contains lite provisions respecting damages to property. The section immediately following these two reads thus: “Provided, that in no event does liability accrue against this association in favor of a member until payment or payments within the terms of his membership have actually been made by said member.” Several other short sections follow which deal with the matter of indemnity, notice of suit and duties of certificate-holder. Section 14, the last section in Article VIII, reads as follows:

“Unless otherwise provided by law of the State within which this certificate is issued, no action shall lie against this association to recover for any indemnity or benefit guaranteed by this certificate, until final judgment has been rendered against the member after an actual trial of the issues on the merits, in a suit duly instituted within the period limited by the Statute of Lim"Rations; ,and then only, provided such action against this association be brought by the member personally, for loss or expense actually paid in money by said member in satisfaction of such final judgment.”

In holding that the settlement of the judgments by giving notes secured by deeds of trust constituted a payment within the contract and entitled Piokel to sue, the Court of Appeals said that if P'ickel had “paid and satisfied the said judgments and thereby sustained such loss, it would seem that it should little concern defendant how or in what way it was paid, whether in cash or in property. However, it may be that defendants are entitled to require that payment be made in a particular manner. But before it should be exempted from liability under the policy on that ground, it should clearly and explicitly appear that such is the strict requirement specified in the insurance contract, and that no other meaning is possible.” The court refers to the principles and decision already mentioned, and then says: “Now, in its widest and popular sense, the term ‘money’ is frequently employed as synonymous with property. [Citing cases.] ‘The term money can be used in-a restricted and also- an enlarged sense. In one it is a standard of value or medium of exchange stamped by government authority; and in the other, in addition -to this, it includes stocks-, bo)nds and other personal securities.’ ” It is then stated that the notes Pickel gave were solvent, were accepted as payment and, therefore, discharged the judgments. The court adds: “We think the clause relied upon by defendant to defeat the insurance herein— the very object and the only object of the insurance contract — can be interpreted to require merely that insured should pay and discharge the judgments, in which case defendant would reimburse him for the loss sustained.”

It is quite clear that there is nothing in the policy or certificate which, in itself, purports to inform the member what he may recover from the association in ease of loss. The language therein used specifically informs the member that he must look to the by-laws in order to discover what is ‘guaranteed to said member.” The by-laws are expressly made a part of the contract. With respect to these things there is neither ambiguity in the language, nor was there doubt in the mind of the Court of Appeals. The certificate sends the member and the courts to the by-laws for the solution of the question as to what were the conditions of the accrual of liability on the part of the association. Turning there, it is suggested that the section (3 of Art. I) which states the general object of the association bears upon the question before the Court of Appeals. It is quoted above. It merely states the general object in view. It does not purport either to define the Association’s liability or to state the condition thereof or to “ guarantee ’ ’ to the member any payments whatever. It has nothing in it which has any tendency to exclude from the by-laws conditions •and limitations which follow this merely and patently introductory paragraph. It cannot aid in the construction of the subsequently written provision pertaining to liability and actions. If sections 1 and 2 of Article YI'II, as previously set out, stood alone, a, different question would be presented; but they are modified by the proviso which follows them, which expressly provides that “in no event does liability accrue against this Association in favor of a member until payment or payments within the terms of his membership have actually been made by such member.” The very presence and existence of the proviso is notice that the sections which it qualifies do not within, themselves contain all the conditions of liability and that those conditions are to be found elsewhere. In fact, the only section which undertakes to define without express, or necessarily implied reference to other prqvisions, what payments may be recovered, is section 14 of article VIII. There- is nothing obscure in its position, type or language. In the certificate and in the other by-laws sign posts are put up which point plainly to this section. It is in the article which is obviously intended to and does define relator’s, liability and the conditions of it. It clearly states the conditions precedent to the maintenance of an action against the association by the insured. It is the only section which, fairly construed, purports to do- so. One of these conditions, is that the action must “be brought by the member personally, for loss of expense. actually paid in money by such member in satisfaction of such final judgment.” Is this ambiguous language? It is to be kept in mind that the policy, as the Court of Appeals correctly held, is one against loss and not one against liability. The clause last quoted defines the “loss” which will be repaid. It is a loss which has been paid. It must have been actually paid in money. Oases construing wills in which money was held to include property within its meaning, in response to the presumption against intestacy, are not in point. There is nothing in the context to expand the meaning of the word money beyond, at least, the popular meaning which includes everything commonly used as a medium of exchange. The language itself is restrictive and emphatic. It will not do, as the Court of Appeals pointéd out, to argue that the parties should not have made the contract. That was their affair. The- other parts of the contract are no more in conflict with relator’s construction of section 14 than they are with the limitations upon the amount of liability or upon the sorts of injury covered by the policy. The language is unequivocal and ise to be given its plain meaning, though found in an insurance contract. [State ex rel. v. Ellison, 269 Mo. l. c. 420.] While, as has been suggested here, the courts “have strained the discretion that lies in the scope of judicial interpretation to prevent forfeiture of insurance,” even that falls short of justifying the result in this case which, with due respect, seems to us not to be the prevention of a forfeiture of insurance but, in fact, the creation of insurance against liability for losses by means of the expansion of the policy to cover losses unequivocally excluded by the; language used by the parties in their contract. Courts may, in proper cases, construe the contracts of the parties, but they have no power to construd a new contract for them. The reason which moved the parties to write the contract as they did is not material. The question here is not, “Why is the provision in the contract?” but merely, “Is it there?” Nevertheless, a reason is conceivable. The liability of relator is. limited to a rather modest sum both for injury to life or limb or property. Could it be that relator may have desired to limit its membership to solvent persons who might be moved by considerations, of their financial welfare and danger thereto if they did not conduct themselves with discretion, to make efforts to avoid the negligent injuring of others, which considerations might not so much influence one whose sole possession was, perhaps, a mortgaged automobile which he had insured? The fact that the member in this case was solvent does not exempt! him from the conditions of his contract. It merely is the thing which made him eligible for such a membership as might, if the contract conditions were met, enable him to collect the amount his contract called for. But the conclusive thing is that he agreed to the conditions which he now seeks to have “construed” out of his contract. The payment he made is doubtless good between him and the injured persons. It does not fall within his policy. What his position will be when his notes are “actually paid in money” is not a question in this case. The decision of the Court of Appeals conflicts with the oases which hold that unambiguous language is not open to construction to defeat an insurance cornu any any more than other litigants as is held in the ease cited, above, and others. No question concerning the liberality of construction in insurance cases is involved in this case. With all respect to our brethren of that court, we think the record should be quashed.

It is so ordered.

Graves, David E. Blair and Bag-land, JJ., concur; White, J., dissents; Walker, J., dissents in separate opinion, in which Woodson, C. J., concurs.