Julian v. Commercial Assurance Co.

*119 BRADLEY, J.- — This cause, in the nature of an equitable garnishment was filed in Webster county, but the venue was changed to *120 Greene where trial was had resulting in a judgment in favor of plaintiff and' the defendant Commercial Assurance Company appealed. The petition was filed originally against the insurance company Only, but P. B. Davis and Dan Bobinson were later made parties defendant. The insurance company and Davis contested, but Bobinson did not. The insurance company alone appealed. September 26, 1921, plaintiff filed the original petition in this cause against the defendant insurance company wherein he alleged: (1)That he was, on all the dates mentioned, engaged in the business Of selling cans, soldering flux, tomato cases, tomato seed, fertilizer, and all supplies used in growing and canning tomatoes and that on the — day of-, 1920, he entered into a contract with P. B. Davis and Dan Bobinson who were growing and canning tomatoes under the name of Davis & Bobinson by which contract he agreed to furnish Davis & Bobinson such supplies as they might need in growing and canning tomatoes during the 1920 season. (2) That by the terms of said contract plaintiff was to have a lien upon the tomatoes canned by Davis & Bobinson during the 1920 season until the purchase price of all supplies furnished was paid, and that the canned tomatoes of Davis & Bobinson should be stored in plaintiff’s warehouse until sold, and that said tomatoes should be kept insured for the benefit of plaintiff until the supplies furnished were paid for. (3) Plaintiff further alleged that Davis & Bobinson during the 1920 season canned a large amount of tomatoes using cans and other supplies of the value of $1850 furnished by him under the contract, and that said canned tomatoes were stored in plaintiff’s warehouse as was agreed, and that Davis & Bobinson caused said stored tomatoes to be insured in defendant insurance company in the sum of $2000, but that no mention was made in the policy of plaintiff’s interest in and lien upon said stored tomatoes although the agents of defendant know at the time that plaintiff held a lien upon said tomatoes. (4) That plaintiff brought suit against Davis & Bobinson in the circuit court of Webster county upon the account due for the supplies furnished, and on September 24, 1921, obtained judgment against said Davis & Bobinson for $1850, but that execution thereon was suspended pending a motion for a new trial. (5) That the aforesaid canned tomatoes were destroyed by fire on May 13, 1921, but that the insurance above mentioned has not been paid, and that due proof of loss has been made by Davis & Bobinson, and that Davis & Bobinson were insolvent. The prayer of the original petition is as follows: “Wherefore plaintiff prays that he be subrogated to all the rights of said Davis & Bobinson in and to the aforesaid policy of fire in *121 surance issued to them by the said defendant, and that said defendant be enjoined and restrained from paying same to the said Davis & Robinson, or either of the members of said firm, or to any other person, or persons, firm or corporation to whom they may have assigned their interest therein, and that they (the insurance company) by proper order and decree of this court be required to pay same to plaintiff, or so much thereof as may be necessary to satisfy and discharge the aforesaid judgment, and for all proper relief. ’ ’ Upon the petition, supra, summons issued on September 27, 1921, and was served upon the insurance company September 28th. Nothing further was done until the next term. January 23, 1922, P. R. Davis and Dan Robinson were made parties defendant on motion of plaintiff, and on same day plaintiff was given leave to file an amended petition on or before the last day of the March term,' 1922. Thereafter on February 14,1922, plaintiff filed an amended petition wherein the insurance company, P. R. Davis and Dan Robinson were named as defendants. The first three paragraphs of the amended petition are almost identical with the first three paragraphs of the original petition. The 4th paragraph of the amended petition contains the same allegations as does the 4th paragraph of the original except in the original it is alleged that a motion for a new trial was pending in another suit and in the amended petition it is alleged that the other cause had been appealed. In the 5th paragraph of the amended petition it is alleged that the aforesaid canned tomatoes were destroyed by fire on May 13, 1921, and due proof of loss made, but that the defendant insurance company had not paid the insurance thereon, and refused to pay plaintiff said insurance or recognize that he had any rights in said insurance, and that defendants Davis & Robinson denied that plaintiff was entitled to said insurance or any part thereof. Plaintiff also alleges in the 5th paragraph of the amended petition that Davis & Robinson were insolvent. The prayer of the amended petition is the same in effect as the prayer of the original petition. February 27, 1922, a summons in garnishment was issued out of the circuit court of Webster county against the defendant insurance company, and was served, but the date of service does not appear. May 8, 1922, the venue of the cause was changed from Webster to Greene county. August 9, 1923, plaintiff filed what is designated as the “first amended petition,” which was in two counts. This petition was in fact the second amended petition. The insurance company and Davis & Robinson were named as defendants as in the first amended petition. The allegations in the first count of the second amended petition are substantially the same as in the first amended petition. The *122 last paragraph and prayer of the first count of the second amended petition are as follows: “That plaintiff has no remedy at law and that in equity and good conscience defendants should not be permitted to settle and appropriate to their use the insurance fund when this plaintiff is equitably entitled to said fund or so much thereof as may be necessary to pay the judgment obtained against defendants, Davis & Robinson, as above set forth. Wherefore, plaintiff prays the court that said insurance fund be declared a trust fund and that defendant, Commercial Assurance Company, Ltd. of London, be enjoined and restrained from paying same to defendants, Davis & Robinson, or either of them or to anyone to whom they may claim to have assigned any interest in the same; that plaintiff be decreed to have an equitable lien on said fund to the amount of his aforesaid judgment against defendants, Davis & Robinson, and be subrogated to all the rights of said defendants, Davis & Robinson, in and to the aforesaid policy of fire insurance and that so much of the proceeds thereof as may be necessary to satisfy and discharge said above-mentioned judgment be decreed to be paid to this plaintiff.” The second count of the second amended petition is in substance the same as the first count thereof, except in one paragraph there are some additional allegations, and the prayer of the second count asks for an equitable garnishment. The paragraph mentioned and prayer of the second count are as follows; ‘ ‘ That defendants, Davis & Robinson, are now and at the time of the filing of this suit were insolvent as this plaintiff verily believes and have no property in this State upon which an execution or other process could be levied and plaintiff knows of no other person, other than defendant, Commercial Assurance Co. Ltd. of London, who is indebted to defendants, or whom he can cause to be summoned as garnishee of said defendants and unless this plaintiff can collect the judgment obtained as aforesaid against said defendants, Davis & Robinson, out of the proceeds of said insurance policy this plaintiff will absolutely be unable to collect said judgment. Wherefore, plaintiff prays the court for an equitable garnishment of the money due defendants, Davis & Robinson, from defendant Commercial Assurance Co., Ltd., of London, as above set forth, and that said money be impounded and all or so much thereof as may be necessary to satisfy and discharge the judgment obtained by this plaintiff against defendants, Davis & Robinson, be ordered paid to this plaintiff by defendants, Commercial Assurance Co., Ltd., of London, and for such other and further relief as to the court may seem equitable and just. ’ ’ *123 Septembler 23, 1923, defendant insurance company filed a demurrer to the second amended petition, the grounds of which demurrer, so far as necessary to mention, are-in substance as follows:' (1) Because the petition shows upon its face that the matter now sought to be litigated has been previously litigated in an action between plaintiff and defendants Davis & Robinson and is res adjudicada; (2) because plaintiff instituted a suit in Webster county on the contract between plaintiff and Davis & Robinson, and reduced the claim to a judgment, and cannot now enforce either in law or equity, any right which plaintiff failed to assert in the suit mentioned: (3) becausé plaintiff instituted a suit in the circuit court of Webster county wherein these defendants were joined in a single cause of action upon the same policy of insurance and the same contract upon which he is now undertaking to recover judgment, and that this defendant (the insurance company) demurred to the petition filed in said cause, which demurrer was sustained and no appeal taken therefrom, and that by reason thereof plaintiff is now barred from prosecuting this action. The demurrer was overruled, but on what date is not shown. December 15, 1924, the defendants, insurance company and Davis, filed separate answers, but defendant Robinson filed no answer. Defendant insurance company’s answer is in substance as follows: It admitted the issuance of the policy for $2000 to Davis & Robinson; admitted that the insured tomatoes were partially destroyed by fire, but denied that they were wholly destroyed, and alleged that Davis & Robinson made proofs of loss wherein they represented that they were the sole owners, and that no other person had any interest in or lien upon said tomatoes, and denied that at the time said policy was issued it had any knowledge that Davis & Robinson had entered into a contract with plaintiff whereby they had agreed to insure the tomatoes for plaintiff’s-benefit. . - Further answering defendant insurance company pleaded a provision of the policy whereby it is provided that the policy shall be void if the insured has concealed or misrepresented- any material fact concerning the subject of insurance, or if the interest of the insured is not correctly stated, or in case of any fraud or false -swearing touching any .matter relating to the insurance whether before or after loss, and it is alleged that these conditions were breached, - and that the policy because thereof became void. Defendant insurance company also pleads two former judgments as a bar to the cause now before us. "We will state the facts concerning these judgments in connection with the disposition- of the assignments based thereon. We do not consider it necessary to speak further concerning the defense made by defendant Davis, and shall not further refer to it. *124 Hereinafter when we use the term defendant we have reference to the defendant insurance company unless otherwise stated. The defendant makes many separate assignments, but all are in effect included in the assignment based on the refusal of its demurrer at the close of the whole case. This assignment may be considered under two heads: (1) Are the judgments pleaded, or either of them, a bar to this cause? (2) Has the defendant waived the defense of misrepresentation as to unconditional ownership? The defendant pleads two judgments in bar. The first one was had in "Webster county, and the second one in St. Louis. We will first consider the Webster county case. June 22, 1921, a month and 9 days after the fire.herein mentioned, plaintiff filed a petition in the circuit court of Webster county wherein he made defendants all of the parties defendant in the cause at bar, and in addition named the Citizens Bank of Marshfield as a party defendant. On the same day, June 22nd, and (as we infer) before process issued, plaintiff filed an amended petition naming as defendants .all the defendants in the cause at bar, but eliminated the Citizens Bank as a party defendant. It seems that the bank was made a defendant on the theory that the insurance policy now at bar had been collected and that the proceeds were then in the Citizens Bank. In the amended petition filed in that cause plaintiff alleged: (1) That he was engaged in the business of selling cans, soldering flux, tomato eases, tomato seed, fertilizer and all supplies used in growing and canning tomatoes and that P. R. Davis and Dan Robinson were upon all the dates mentioned engaged in growing and canning tomatoes. (2) That on or about March 26, 1920, plaintiff and defendants Davis & Robinson entered into a written contract, a copy of which was filed, by which contract plaintiff agreed to furnish Davis & Robinson such supplies as they might need in growing and canning tomatoes during the 1920 season, and that Davis & Robinson purchased from plaintiff said supplies, that it was agreed in said contract that plaintiff should have a first lien upon said supplies furnished until the purchase price was paid. (3) That is was further provided in said’ contract that the tomatoes canned by Davis & Robinson were to be stored in plaintiff’s warehouse and that the storage charges should constitute a lien upon said canned tomatoes in the same manner and to the same extent as the lien for supplies. (4:) That it was further agreed in said contract that the tomatoes so stored were to be insured for the benefit of plaintiff, and that said' insurance should be kept in full force until plaintiff was fully paid for said supplies and storage and all interest due on the account. (5) That Davis & Robinson canned during the 1920 season a large amount of tomatoes, using the cans, eases and other supplies *125 furnished by plaintiff under the contract, and that said canned tomatoes were stored' in plaintiff’s warehouse, and were destroyed by fire on May 13, 1921. (6) That Davis & Robinson caused said stored tomato.es to be insured with defendant insurance company in the sum of' $2000 taking the policy in the name of Davis & Robinson without mention of plaintiff’s lien, and that said Davis & Robinson when said policy was issued and at the time of the fire and then were indebted', to plaintiff in the sum of $2015.12 for supplies furnished under the contract and for storage and for interest on said account “as same will more fully and particularly appear by the itemized statement of said account hereto attached, and for which sum plaintiff held a first lien upon said canned tomatoes so destroyed by said fire.” (7) That Davis & Robinson now refuse to recognize plaintiff’s rights to the proceeds of said insurance policy and declare their intention of collecting said insurance in their own name and deny any liability to plaintiff on account thereof. The prayer of this petition is as follows: “Wherefore, plaintiff prays judgment against said defendant Davis & Robinson in the sum of $2015.12 and that he have judgment against said insurance company in the sum of $2000, the amount of said' policy, and that said insurance company be enjoined and restrained, from paying said insurance to said Davis & Robinson, and that they be by order of court required to pay same to plaintiff, and that the judgment against Davis & Robinson be declared to be a special lien upon the proceeds of said insurance policy, and for all proper relief. ’ ’ On this petition ordinary summons issued, as we infer, and was served upon the defendant insurance company June 27, 1921. No further steps were taken in that cause, so far as appears, until September 23, 1921, at which time defendant insurance company appeared and filed a motion to dismiss as to it. The grounds of this motion as stated therein are as follows: (1) Because said petition states no cause of action against the defendant. (2) Because the plaintiff is not a party to the contract of insurance pleaded in the plaintiff’s petition. (3) Because plaintiff’s petition shows upon its face that it is not entitled to a money judgment against this defendant. (4) Because plaintiff’s petition fails to plead any contract between plaintiff and this defendant. (5) Because plaintiff’s petition fails to attach thereto a copy of the policy sued upon, or the original thereof, or to set out in general terms the nature of the contract as required by the code of procedure. ’ ’ *126 The motion to dismiss was sustained, but upon what ground does not appear, and the insurance company went out of that case. September 24, 1921, plaintiff obtained a judgment in that cause against Davis Robinson in the sum of $1850. An -appeal was taken, without making appeal bond', as now appears, and that judgment was affirmed by this court on February 27, 1924. [See Julian v. Davis et al., 214 Mo. App. 525, 259 S. W. 142.] Defendant insurance company contends that the judgment of dismissal as to it in the cause last-above mentioned is a complete bar to the present cause. We shall, for convenience, refer to the case from which the insurance company was dismissed as the account case. After the insurance company was dismissed from the account case, that case proceeded as a suit on an ordinary account as fully appears from the reported opinion referred to, supra, and from the record on file in this court of which record we will take judicial notice. [Runnels v. Lasswell, 272 S. W. (Mo. App.) 1072.] The account ease as originally filed was on an ordinary account, and was also in the nature of an equitable garnishment. Plaintiff invoked the law arm of the court to obtain a judgment on his account, and at the same time invoked the equity arm against the insurance company in order to realize on the judgment he sought to obtain against Davis & Robinson. Such was the situation in the account case prior to the dismissal as to defendant insurance company. In the cause at bar, plaintiff is seeking to realize on the judgment he obtained in the account case, and to realize on said judgment he is again invoking the equity arm of the court. So we agree with learned counsel for the defendant insurance company that the issues presented, so far as concerns the insurance company, are the same in the cause at bar as in the account case, prior to the dismissal of the insurance company, when measured by the petitions the substance of which we have stated. But though such is the case it does not necessarily follow that the judgment rendered in the account case is a bar to the present cause. The primary objective in the account ease was a judgment against Davis & Robinson, and the insurance company, defendant here, was made a party in the account case in order to enhance the chances of satisfaction in the event a judgment was obtained against Davis & Robinson. It cannot be questioned that plaintiff could' have proceeded against Davis & Robinson in the account case without making the insurance company a party. Judgment was obtained in the account case against Davis & Robinson and thereafter the cause at bar was filed which we regard in the nature of an equitable garnishment the object and purpose of which is to establish that the insurance company is 'liable on the policy issued to Davis & Robinson and that plaintiff is entitled to the proceeds. Plaintiff’s contention that he is entitled to the proceeds of the policy *127 is based upon the contract between plaintiff on the one hand and Davis & Robinson on the other, wherein it was provided that the canned tomatoes of Davis & Robinson stored in plaintiff’s warehouse should be insured for the benefit of plaintiff. Plaintiff’s original cause against Davis & Robinson, the account ease, was also in a measure based upon this contract, hence the similarity in the allegations of the petition in the account case and in the petition at bar in so far as concerns the insurance company. But the issues in the account case, after the insurance company .was dismissed therefrom, were wholly different from the issues in the cause at bar. The defendant insurance company was not a necessary party in the account case and in effect was no more than a garnishee and the dismissal of the insurance company from that case in which the issues we^e entirely different is not res adjudicaba as to the issues at bar. [Wells v. Moore, 49 Mo. 229; Bennett v. Southern Bank, 61 Mo. App. 297; Shanklin ex rel. v. Francis, 67 Mo. App. 457; Swing v. Karges Furniture Company, 150 Mo. App. 574, 131 S. W. 153; Wilson & Co. v. Hartford Fire Ins. Co., 300 Mo. 1, 254 S. W. 266; Wing v. Union Central Life Ins. Co., 167 Mo. App. 14, 150 S. W. 1121.] In order to enable the reader to better understand we here repeat some facts heretofore stated. The cause at bar was filed in Webster county September 26, 1921, and process served upon defendant insurance company September 27th. Nothing further was done until January 23, 1922, at which time Davis & Robinson were made parties defendant and leave granted to file an amended petition, which amended petition was filed February 14, 1922. When the amended petition was filed’ summons in garnishment was issued and served upon defendant insurance company. December 27, 1921, twenty-seven days prior to the time when Davis & Robinson were made parties to the cause at bar they, Davis & Robinson, residents of Webster county, filed suit against defendant insurance company in the city of St. Louis on the insurance policy in question here. Service was had in the St. Louis suit on December 30th. Defendant insurance company filed answer in the St. Louis suit setting up the defense of misrepresentation as to the unconditional ownership of Davis & Robinson. The date when this answer was filed does not appear, but on February 6, 1922, the parties to the St. Louis suit filed a stipulation consenting to the trial of the cause before the court without a jury. February 8, 1922, at the February term of the St. Louis circuit court judgment, which was by agreement we assume, was rendered in favor of the defendant insurance company. We say that we assume that the St. Louis judgment was by agreement because it appears in the record before us that no evidence was offered. It appears also that on January 23, 1922, prior to the St. Louis judg *128 mbnt defendant insurance company paid to Davis & Robinson $1000 in settlement of tbe insurance policy involved in tbe cause at bar. Defendant insurance company contends that the St. Louis judgment is also a bar to the present cause. Plaintiff had no knowledge or notice of the St. Louis suit until after judgment, and so far as appears there was nothing before the St. Louis circuit court to advise that 'the present cause was then pending in Webster county. The St. Lóúis circuit court had jurisdiction of the parties to, and the subject-matter of, the cause filed' there, and unless the rule of priority of acquiring jurisdiction of the parties can be successfully invoked plaintiff cannot escape the plea of the St. Louis judgment. The cause at bar had been pending with process served upon defendant insurance company for three months prior to the filing of the St. Louis suit, hence the question of priority of jurisdiction of the Webster county circuit court and the St. Louis circuit court should be determined as of September 26, 1921, when the original pétition was filed' in Webster county and process issued against the insurance company. This is the proper date from which to reckon provided the original petition and cause of action stated therein were not abandoned. When two courts have coordinate jurisdiction the one whose jurisdiction first attaches will retain it and proceed to final judgment regardless of the action of the other. [Grey v. Independent Order of Foresters, 196 S. W. (Mo. App.) 779; State ex rel. Sullivan et al. v. Reynolds, 209 Mo. 161, 107 S. W. 487, 15 L. R. A. (N. S.) 963, 123 Am. St. Rep. 468, 14 Am. Cas. 198.] Learned counsel for defendant insurance company does not controvert the law thus stated, but contend that the filing of the amended petition was an abandonment of the original, and since the jurisdiction of the St. Louis circuit court attached between the time leave was granted' to file, and the'filing’ of the amended petition, that it, the St. Louis circuit court had the lawful right to proceed to final judgment. The substance of the original and amended petitions are set out, supra, and the prayer of the original is set out in full: The prayer of the amended petition is substantially the same as is the prayer of the original. There is nothing substantial to support the contention that the original'petition was abandoned or that the amended petition stated a new or different cause of action. It is our conclusion that the St. Loiiis judgment cannot be interposed as a bar to the cause now before' us. Has the defendant insurance company waived the defense of misrepresentátion as to unconditional ownership? Plaintiff had a lien upon the insured tomatoes and no mention of this lien was. made by Davíá & Robinson when the policy was applied for and issued. Plaintiff contends that defendant insurance company has waived the de *129 fense of misrepresentation as to unconditional ownership in Davis & Robinson (1) because, as claimed, said company, before the fire, was notified of plaintiff’s lien or interest and notwithstanding such notice the premium was retained and no steps taken to cancel the ■policy; and (2) because after the fire defendant insurance company paid to Davis & Robinson $1000 on. the loss notwithstanding the misrepresentation of unconditional ownership which was then known by the insurance company. The evidence offered to show that defendant insurance company, prior to the fire, had knowledge of plaintiff’s lien or interest in the tomatoes insured, was by plaintiff. He testified: “Q. Did you have a conversation with Guy Winslow, agent of this company, after the policy was written and before the fire relative to your interest in the goods insured? A. Yes, sir, I asked him if they had taken out the insurance. “Q. Who? A. Davis & Robinson on the stuff. “Q. What stuff? A. What stuff they had there. “Q. Go ahead and tell the court the conversation. A. I just asked Mr. Winslow if Davis & Robinson had taken out insurance on the stuff they had in my ware room, and he said they had a $2000 policy on one lot, and a $3000 policy on the other lot. By the Court: “Q. Is that all the conversation? A. Well, yes, I wanted to know. “Q. I am not asking you why you wanted to know. Did you tell all the conversation between you and Mr. Winslow? A. Well, Yes, in a way, I guess I have. By Mr. Dickey: Q. Now, Mr. Julian, did you have any other conversation with Mr. Winslow? A. Yes, sir. “Q. When -was that? A. The day after the fire.” Here follows the conversation after the fire, after which counsel returned to the conversation before the fire and asked: “Q. To refresh your memory, I will ask you if in that first conversation you told Mr. Winslow anything about your interest in that matter? A. Yes, sir. By The Court: “Q. You didn’t say so awhile ago, I asked you if that was all the conversation, that is what I asked you, I asked you what was said, did you tell us all of it awhile ago? A. I don’t believe I could' tell it word for word, the substance was simply this, I wanted to knowr if they did insure it. ”Q. Mr. Dickey asked you if you told Winslow anything about having any interest in that? A. Yes, sir. ”Q. Why didn’t you say that awhile ago? A. I couldn’t say just the words I used, that was the substance of it. “Q. You had no conversation with him prior to the time the policy was taken out? A. No, sir, I don’t think so, I might have asked him before that if it was taken out, I am not sure. ’ ’ *130 The evidence that the agent "Winslow had knowledge before the fire of plaintiff’s interest is too meager and indefinite to be substantial. We have set this evidence out and it speaks for itself. Has the defendant waived the right to defend on the ground of misrepresentation of unconditional ownership because it did not return nor offer to return the premium to Davis & Robinson and’ because it paid the $1000 on the policy to Davis & Robinson! There was no contractual relation between plaintiff and the defendant insurance company, and plaintiff cannot recover from defendant the proceeds of the policy except by showing that Davis & Robinson could recover on the policy. Notwithstanding the misrepresentation defendant paid $1000 on this policy to Davis & Robinson. The misrepresentation could be waived if such was desired. Defendant was not liable on the policy to Davis & Robinson unless it waived the provision respecting the misrepresentation. The payment of the $1000 to Davis & Robinson was an acknowledgment of liability, and was a fact which plaintiff had the right to establish in the cause at bar in support of his contention that defendant was liable to Davis & Robinson on. the policy. The fact that the St. Louis circuit court subsequent to the payment of the $1000' rendered' a judgment that defendant was not liable on the policy to Davis & Robinson is not of consequence if said court did not have jurisdiction and we have ruled that such was the ease when St. Louis judgment was rendered. We look upon the payment of the $1000 to Davis & Robinson as though such payment had been made when no. suit was pending against the defendant insurance company commenced by Davis & Robinson. It is, of course, conceded that when the $1000 was paid defendant insurance company had full knowledge that plaintiff had a lien upon the insured tomatoes and was then endeavoring to subject the insurance policy to the satisfaction of his judgment against Davis & Robinson and his lien upon the insured tomatoes. Not only did defendant insurance company, after it was fully informed of plaintiff’s lien, fail to return or offer to return the premium to Davis & Robinson which it should have done had it desired' to invoke the misrepresentation of unconditional ownership, but it went further and acknowledged liability by paying to Davis & Robinson $1000. Failure to return or offer to return the premium, and the payment of the $1000 after acknowledge of plaintiff’s lien was a waiver of the breach of the condition of unconditional ownership. [Hayden v. American Central Ins. Co., 221 S. W. (Mo. App.) 437.] We find no error. The judgment should, therefore, be affirmed and it is so ordered. Cox, P. J., and Bailey J., concur.