Corder v. Morgan Roofing Co.

On Motions for Rehearing.

Both parties have filed motions for rehearing. Garnishee’s motion is a re-argument of the questions decided by the opinion and we adhere to our rulings as to all of them. Garnishee does further contend that the joint judgment is not authorized because of Section 97 of the Civil Code (Sec. 847.97 Mo. Stat. Ann.) However, that section relates only to compulsory consolidations and has no bearing on voluntary consolidations. Section 16 of the Code (Sec. 847.16 Mo. Stat. Ann.) authorizes voluntary joinder of plaintiffs when they assert rights “arising out of the same transaction, occurrence, or series of transactions or occurrences and if any question of law or fact commoh to all of them will arise in the action”. Therefore, plaintiffs could have joined under this section had it been in force when they commenced their garnishments. Certainly there is no good reason why they could not afterwards consolidate them by agreement. While separate judgments are authorized by this section, plaintiffs make no complaint concerning this joint' judgment and Garnishee can be in no way prejudiced by it. Garnishee’s motion is overruled.

Plaintiffs in their motion (also asking transfer to banc) contend that Section 6009,. R. S. 1939, Mo. Stat. Ann. makes all persons, injured by one insured under a public liability policy, beneficiaries of the policy so that they are entitled to recover damages and attorney’s fees under Section 6040, R. S. 1939, Mo. Stat. Ann. They even *143 argue that plaintiffs herein suffered a loss under the policy issued to defendant, and, therefore, have the right to recover on it. They say that this is true because Section 6009 makes such insurance a contract of indemnity against liability and not a contract of indemnity against loss. [Citing Yeats v. Dodson, 345 Mo. 196 , 127 S. W. (2d) 652 ; and Hocken v. Allstate Insurance Co., 235 Mo. App. 991 , 147 S. W. (2d) 182 .] The trouble with this argument is that Section 6010, B. S. 1939, Mo. Stat. Ann. which provides the remedy for such an injured person who recovers a judgment for his injuries, only authorizes him “to reach and apply the insurance money to the satisfaction of the judgment.” Thus it is required that he get judgment against the insured and he is not authorized to sue the insurer on the policy.

Of course, as plaintiffs point out, a beneficiary of a life insurance policy may recover damages and attorneys’ fees under Section 6040; but this is because the policy is payable to him and he alone has the right to sue on it. Section 6009 only makes the liability of the insurance company absolute when there is liability on the part of the insured, instead of making it become dependent upon payment of the loss by the insured; but it does not purport to give the person injured by the insured the right to sue on the insured’s policy. Section 6010, which provides his remedy, gives him only a right in the nature of an equitable garnishment to collect a judgment obtained against the policy holder. That is clearly stated to be the right “to reach and apply the insurance money”; and it is too plain for argument that damages and attorneys’ fees under Section 6040 are not part of the insurance money due on an insurance policy. Plaintiffs are after all only garnishors and, if a garnishor is to have an allowance of attorneys’ fees, such right must be given by the Legislature; it cannot be granted by this Court.

Plaintiffs’ motion is overruled.

All concur.