Opinion
No. 42700.
October 13, 1952.
APPEAL FROM THE CIRCUIT COURT OF BOONE COUNTY, W. M. DINWIDDIE, J.
Ralph L. Alexander, Warren W. Welliver, Columbia, Howard B. Lang, Jr., Columbia, Alexander, Ausmus, Harris Welliver, Columbia, of counsel, for appellant.
Sapp Bear, William H. Sapp, Columbia, for respondents Charles and Raymond Quinn.
Peterson Nelson, Paul M. Peterson, Will L. Nelson, Columbia, for respondents John Marvin McAdam and others.
Howard F. Major, Columbia, for respondent William K. McJilton.
Plaintiff-appellant insurance company (herein called plaintiff) sought a declaratory judgment that its automobile liability policy No. 1-35435 was not in force and effect at the time of an automobile collision on the morning of January 13, 1950. The automobiles involved were a truck owned by defendant-respondent Charles Quinn and driven by his son, defendant-respondent Raymond Quinn, and a car owned and driven by defendant-respondent William K. McJilton. The three other defendants-respondents were occupants of the McJilton car. Judgment was for defendants and plaintiff appeals.
Paragraph 2 of plaintiff's petition alleged: The issuance in June, 1949, of the policy, "effective June 29, 1949, to December 29, 1949," upon the truck, to Charles Quinn as "insured"; that under the policy "plaintiff agreed to pay on behalf of the insured all sums which the insured should become obligated to pay by reason of liability imposed upon the insured by law for damages * * * because of bodily injury sustained by any person or persons, caused by accident arising out of the ownership, maintenance or use of" the truck; "that said policy provided that the limit of plaintiff's liability for all damages * * * arising out of bodily injury to one person in any one accident was $10,000 and for bodily injury to two or more persons in any one accident was $20,000 and for damages to property of others in any one accident was $5,000; said policy provided that the unqualified word `insured' wherever used therein included not only the named insured but also any person legally responsible for the use of said truck, provided the actual use was with the permission of the named insured; said policy further provided that plaintiff should pay to the named insured damages to said truck arising out of collision in the amount of the actual damages caused by said collision, less the sum of fifty dollars ($50.00); said policy also provided that plaintiff should defend in the name and in behalf of the insured any suit alleging such injury, and seeking damages on account thereof, even if such suit be groundless, false or fraudulent."
The petition alleged that plaintiff had extended the policy for ten days, that Quinn failed to reinstate the policy within such period and that the policy expired January 8, 1950; that on January 13, 1950, after the collision, Quinn paid a $36.15, premium to plaintiff's "part time soliciting agent" who forwarded it to plaintiff; that plaintiff received the $36.15 the same day and on January 16, 1950, mailed Quinn a receipt therefor; and that on January 16, 1950, plaintiff notified Quinn that the policy was not in force at the time of the collision, that plaintiff would not "reinstate" the policy and tendered Quinn the $36.15, which tender Quinn refused.
Paragraph 7 was: "Plaintiff states that claims have been made by the defendants [naming the four occupants of the McJilton car] against the defendants Charles Quinn and Raymond Quinn for damages growing out of said collision and said defendants Charles Quinn and Raymond Quinn have notified plaintiff of said claims for damages and have requested plaintiff to entertain and recognize said claims because said defendants Charles Quinn and Raymond Quinn claim and assert that plaintiff's said policy of insurance was in full force and effect at the time of said collision. In this connection, plaintiff states that said defendants Charles Quinn and Raymond Quinn have requested and demanded that plaintiff investigate said collision and to defend them against any and all claims that might grow out of said collision."
In Paragraphs 8 and 9, plaintiff denied liability on the ground that the policy was not in effect at the time of the collision, and asserted that plaintiff was "under no obligation to defendants Charles Quinn or Raymond Quinn to investigate said collision or to defend any claims growing out of said collision or to pay to any of said defendants any sum which defendants Charles Quinn or Raymond Quinn might become obligated to pay by reason of liability imposed upon said defendants by law for damages growing out of said collision."
Defendants-respondents' answers admitted the allegations of Paragraphs 2 and 7. In other words, all six of the defendants conceded that the four occupants of the McJilton car had claims against the Quinns "for damages growing out of said collision" and that the Quinns had so notified plaintiff and had requested plaintiff to "entertain and recognize" such claims.
We do not have jurisdiction of this appeal. Where, as here, appellate jurisdiction is dependant upon the "amount in dispute," this court does not have jurisdiction unless such amount, exclusive of costs, exceeds $7,500. Sec. 3, Art. V, Const., 2 V.A.M.S. Plaintiff states in its brief that such amount exceeds $7,500. Such a recital is not sufficient. Juden v. Houck, Mo.Sup., 228 S.W.2d 668, 669. The record must affirmatively show that the amount in dispute, exclusive of costs, exceeds $7,500. Gillespie v. American Bus Lines, Mo.Sup., 246 S.W.2d 797, 798. Where, as here, plaintiff does not seek a money judgment, the "amount in dispute" is the money value of plaintiff's relief, or defendant's loss, if plaintiff is granted relief or vice versa if such relief is denied. National Surety Corp. v. Burger's Estate, Mo.Sup., 183 S.W.2d 93, 95. And "the fact of a value in excess of $7,500 must affirmatively appear from the record and may not be surmised or conjectured." Cooper v. School District or Kansas City, Mo.Sup., 239 S.W.2d 509, 511. "A mere chance that the amount in dispute may exceed $7,500 does not give this court jurisdiction." Platies v. Theodorow Baking Co., 334 Mo. 508, 66 S.W.2d 147, 148. And see Cotton v. Iowa Mutual Liability Insurance Co., Mo.Sup., 251 S.W.2d 246.
In the instant case, neither the petition nor the answers disclose the money amounts of any of the claims of the occupants of the McJilton car. There was no evidence whatsoever as to this matter. Thus, the record does not affirmatively show that the money value of the relief plaintiff seeks exceeds $7,500.
Accordingly, the cause is transferred to the Kansas City Court of Appeals.
VAN OSDOL and COIL, CC., concur.
The foregoing opinion by LOZIER, C., is adopted as the opinion of the court.
All concur.