This is a garnishment imbroglio. On June 2, 1964, plaintiffs Ellis White and Della White, an elderly married couple who since 1920 had owned and resided on a 60-acre tract just south of Highlandville, Missouri, instituted suit in the Circuit Court of Christian County against defendant Jack Smith d/b/a Highlandville Packing Company, who owned and operated an abattoir or slaughterhouse on the tract just north of plaintiffs' acreage, there carried on a "general custom slaughtering and processing" business, and in connection therewith maintained a nearby lagoon or pond into which blood, offal and waste material from the slaughterhouse were drained. Plaintiffs' suit was "for nuisance," with a prayer for an injunctive decree abating the nuisance and for monetary damages. Following trial on October 15, 1965, the court entered a judgment and decree granting the requested injunctive relief and awarding plaintiffs the sum of $6,000 as damages. There was no appeal therefrom.
At all times herein material, defendant Smith was the named insured in a "General Liability Insurance Policy" issued by Countryside Casualty Company which obligated it "to pay on behalf of the insured all sums [within the policy limits of $25M/$50M/ $10M] which the insured shall become legally obligated to pay as damages because of bodily injury, sickness or disease. . . and as damages because of injury to or destruction of property, including the loss of use thereof, caused by accident and arising out of the hazards hereinafter defined and designated in the declarations." (All emphasis herein is ours.) "Operations and Premises," the hazard designated in the declarations, was defined as "[t]he ownership, maintenance or use of premises, and all operations."
This garnishment proceeding under Rule 90 [Chapter 525]
Garnishee's preliminary assault upon the judgment nisi is that the trial court erred in overruling garnishee's motion for judgment at the close of plaintiffs' evidence "for the reason that plaintiffs failed to allege [in their denial of garnishee's answers to interrogatories] facts sufficient to state a cause of action against garnishee." Rule 90.18 provides that such denial "shall contain, specially, the grounds upon which a recovery is sought against the garnishee." Instant plaintiffs' denial (incorrectly titled "Plaintiffs' Reply to Garnishee's Answers") specially averred "that garnishee, by a policy of casualty insurance issued to the said Jack Smith [defendant], agreed to indemnify the said Jack Smith against any judgments for damages obtained against him, growing out of the operation of the packing plant, which was the subject of plaintiffs' action" and "that garnishee is indebted to the said Jack Smith in an amount in excess of that for which plaintiffs obtained judgment against said defendant." Upon the issues joined by plaintiffs' denial and garnishee's reply thereto in the nature of a general denial, the parties proceeded to trial. At the outset of the hearing, garnishee's policy was received in evidence by stipulation of opposing counsel and plaintiffs' original petition in the nuisance action was admitted without objection. After defendant and both plaintiffs had been examined and cross-examined at length and plaintiffs had rested their case, garnishee filed its "Motion for Judgment" in which it challenged for the first time the legal sufficiency of plaintiffs' denial of garnishee's answers to interrogatories. Garnishee's argument here is that by its policy it did not agree, as was averred in plaintiffs' denial, "to indemnify [defendant] against any judgments for damages" but only contracted to indemnify him for all sums which he might become legally
When garnishee made no attack upon plaintiffs' denial but replied to the merits and proceeded to trial, it "waived all defects except those so fundamental in character that a [judgment] could not cure them." Kiernan v. Robertson, 116 Mo.App. 56, 60, 92 S.W. 138, 139(1). We do not regard the failure of plaintiffs' denial to track the precise language of garnishee's policy as a defect "so fundamental in character" that the subsequent judgment did not cure it. See Hall v. Weston, Mo., 323 S.W.2d 673, 680; Taylor v. Dollins, 205 Mo.App. 246, 248, 222 S.W. 1040, 1041. Furthermore, if plaintiffs' denial was insufficient, all parties proceeded to trial as though the ultimate issue, i. e., whether garnishee was liable under its policy to pay the monetary judgment obtained by plaintiffs in the nuisance action, had been raised properly in the pleadings, so in any event the denial should be treated as amended to raise that issue. Rule 55.54; § 509.500; Saunders v. Crusader Life Ins. Co., Mo.App., 421 S.W.2d 563, 565(2); Greene v. Morse, Mo. App., 375 S.W.2d 411, 418(11), and cases there collected in note 16. With the record conclusively demonstrating that garnishee was in no wise misled or prejudiced by the alleged imperfection in plaintiffs' denial [cf. Knight v. Swift & Co., Mo., 338 S.W.2d 795, 800(8)], garnishee's preliminary point is rejected as without merit.
We proceed to the two meritorious questions briefed and presented on this appeal, to wit, (1) whether or not the judgment in the nuisance action collaterally estops garnishee to deny in the garnishment proceeding that plaintiffs' damages were "caused by accident" and (2) if garnishee is not so collaterally estopped, whether or not such damages were "caused by accident."
Of collateral estoppel. As noted at the outset, the nuisance action was instituted on June 2, 1964. During August 1964, while that action was pending upon plaintiffs' original petition and defendant's motions for costs, to dismiss, to make more definite and certain, and to strike, defendant's personal counsel tendered defense of the action to Countryside, which declined such defense on the ground that "the circumstances and situations complained of in the petition [were] not matters covered" by its policy.
Defendant's motion to make more definite and certain having been sustained in certain particulars, plaintiffs' first amended petition (not materially or significantly different from their original petition) was filed on October 10, 1964. In that amended petition on which issue was joined, plaintiffs made several complaints (here lettered to facilitate subsequent reference thereto), to wit: (a) that defendant so operated the slaughterhouse that foul and noxious odors were permitted to escape therefrom and to blow over plaintiffs' lands and in and around their dwelling; (b) that, at various points on his adjacent tract, defendant had deposited bones, offal and other residual material from the slaughterhouse operation, which had decayed, putrified and caused other noxious odors to pass over plaintiffs' lands; (c) that the bawling of cattle and the squealing of swine, while confined in pens awaiting slaughter, had discomforted plaintiffs in the enjoyment of their dwelling and had interfered with their normal rest and sleep; (d) that defendant had drained blood and waste material from the slaughterhouse into a nearby lagoon or pond he had constructed, which had been permitted to overflow onto plaintiffs' lands, had contaminated plaintiffs' well, and had made it unfit for use; and (e) that waste material from defendant's slaughterhouse also had contaminated plaintiffs' well. Plaintiffs then averred that "the acts of defendant are constant and continuous of (sic) their nature and that plaintiffs have requested of defendant that the matters herein complained of be abated, but defendant has failed and refused so to do." The prayer was for injunctive relief and for damages in the sum of $9,000. In his answer, defendant generally denied the foregoing complaints and then pleaded a motley
On the same day on which the nuisance action was tried and judgment was entered, to wit, on October 15, 1965, and (we assume), "before final submission of the case" [Rule 73.01(b); § 510.310(2)], defendant Smith filed a written "Request for Findings of Fact and Conclusion of Law," comprised of an introductory plea that "[t]he defendant requests the court draft findings of fact on the following facts" followed by seven numbered interrogatories and one unnumbered request; and, on the same day, the trial judge filed the "Court's Answer to Defendant's Request," comprised of a preliminary recital followed by seven numbered and one unnumbered answers. Defendant's seven numbered interrogatories and unnumbered request with the court's answers thereto (combined for convenience in reading) were: "1. Did the use and operation of the defendant's premises for butchering operations accidentally cause the plaintiff's (sic) damages? A. Yes. 2. What was the extent of damage? A. In the amount of $6,000. 3. Did the above accidental cause and damage occur within the period of 2/1/64 and 5/1/64? A. Yes. 4. Was the cause of plaintiff's (sic) damage the natural and probable consequence of the acts of the defendant? A. No. 5. Could the defendant have reasonably anticipated the damage from the use he made of his premises? A. No. 6. Did the defendant intend to damage the plaintiff (sic) by the operation of his premises? A. No. 7. Did the defendant design to produce by his operation the damage to plaintiff (sic)? A. No. [Unnumbered request] The defendant further requests the court set forth its method for determining the amount of damages. [Answer] The court finds that the act of the defendant complained of occurring on or about February, 1964, decreased the reasonable value of plaintiffs' land and damages plaintiffs in the amount of $6,000."
No portion of the evidence adduced upon trial of the nuisance action was offered at the hearing in the garnishment proceeding; but, based upon the above record, plaintiffs now insist that whether their damages were "caused by accident" has been "already litigated and determined . . . and may not be relitigated" in the garnishment proceeding. The general rule is that, where an indemnitor had notice of the suit against the indemnitee and was afforded the opportunity to control and manage the defense thereof, a judgment therein against the indemnitee, if obtained without fraud or collusion, is conclusive in a subsequent action on the indemnity contract only as to all questions and issues necessary to the result of the first suit and thus necessarily determined therein.
Instant plaintiffs' suit was "for nuisance." An actionable nuisance may be "`anything wrongfully done or permitted, which injures or annoys another in the enjoyment of his legal rights.'"
Although plaintiffs' counsel recognize the hereinbefore-stated general rule, they argue that "the rule should be applied" in this wise to avoid the above conclusion: Estoppel was one of the affirmative defenses pleaded in defendant's answer in the nuisance action. "[T]o determine whether estoppel was a factor in [that] case, the court had necessarily first to determine whether what the defendant did was deliberate (as opposed to `accidental'), and if so, whether it was based on any inducement by the plaintiffs so to act. Having found that defendant's action was accidental, it became unnecessary to reach any other point, i. e., whether or not anything plaintiffs did induced such action by defendant, because estoppel can't arise out of other than deliberate and misleading conduct. From this, it certainly follows that a finding of accident was a matter necessarily involved and litigated in the primary case [nuisance action]."
The stated theory of plaintiffs' counsel is novel and ingenious but nonetheless factitious and fallible. Assuming arguendo that the affirmative defense of estoppel pleaded in the nuisance action remained a live and litigated issue therein, and passing the provocative question as to whether the terms "deliberate" and "accidental," in the context in which they are employed in plaintiffs' brief, are mutually exclusive, we observe that "[t]o constitute estoppel in pais, three things must occur: First, an admission, statement, or act [conduct] inconsistent with the claim afterwards asserted and sued on; second, action by the other party on the faith of such admission, statement, or act; and, third, injury to such other party, resulting from allowing the first party to contradict or repudiate such admission, statement, or act."
The record before us contains no mention or suggestion of estoppel save the naked allegation thereof in defendant's answer in the nuisance action. But if, nevertheless, it be assumed that this affirmative defense was submitted and determined upon trial of that action, it becomes obvious (so we think) that a finding thereon adverse to defendant well might have been predicated upon the first element, i. e., want of inducement by plaintiffs, and that (contrary to plaintiffs' above-quoted contention here) it was not necessary for the court "first to determine whether what the defendant did was deliberate (as opposed to accidental)" and "a finding of accident was [not] a matter necessarily involved and litigated" therein. Accordingly, we conclude that the judgment in the nuisance action did not collaterally estop garnishee to deny in the garnishment proceeding that plaintiffs' damages were "caused by accident."
Of "caused by accident." The slaughterhouse and nearby lagoon were constructed in 1959, and defendant's "slaughtering and processing" business was carried on continuously thereafter to the time of trial in October 1965. Plaintiffs resided on their adjoining farm until May 1963 when they rented the farm to tenants and moved to Springfield. There was substantial evidence in the garnishment proceeding that, prior to their move, plaintiffs were, in the enjoyment of their legal rights, annoyed and discomforted by the matters particularized in complaints (a), (b) and (c) in plaintiffs' first amended petition, i. e., by foul and noxious odors emanating from defendant's slaughterhouse and the pond (to which plaintiffs sometimes referred as "the cesspool") into which blood, offal and waste material were drained, and by the bawling of cattle and the squealing of swine while confined in pens awaiting slaughter. On cross-examination by garnishee's counsel, plaintiffs readily admitted the truth of their pleaded averments that "the acts of defendant [were] constant and continuous in their nature." But, as the very character of complaints (a), (b) and (c) suggests and as plaintiffs' testimony in its entirety plainly demonstrated, their annoyance and discomfort were variable in degree and intermittent in character.
Complaints (d) and (e) in plaintiffs' first amended petition pertained to the contamination of plaintiffs' well, one hundred twenty-five feet in depth and situate about 6 feet behind or west of their dwelling. The pond on defendant's tract was located "right close to" the boundary line fence between that tract and plaintiffs' farm and was formed "in kind of a depression" with the dam at the head of a north-south ravine that drained to the south onto plaintiffs' farm. Two overflow pipes "directed toward the ravine" were placed near the top of the dam. Those overflow pipes were subsequently closed as a result of plaintiffs' remonstrances; but thereafter the pond still "overflowed over the top" of the dam "a lot of times"—"periodically . . when it rained, [during] rainy spells"— "when it would come hard rains and rain for three or four days or something like that." Although no exact measurements were given, the pond was some 450 feet (so plaintiff Della thought) to 700 feet (so plaintiff Ellis estimated) northwest of the well, while the north-south ravine, as it ran through plaintiffs' farm, was (according to plaintiff Ellis) "probably 250 feet" west of the well.
During the period of their residence on the farm, plaintiffs had used the water from the well for all purposes, including use "for human consumption without treating" or boiling it. On a few occasions, not more than "three or four or five times," "after periods of rather heavy rain" plaintiff Della had noticed "some, not much" discoloration of the water in the well "maybe for a day or so," but use of the well had been unrestricted and uninterrupted. Several
Considerable testimony at the hearing in the garnishment proceeding pertained to complaints (a), (b) and (c) in the first amended petition, but plaintiffs placed major emphasis upon complaints (d) and (e), i. e., upon contamination of their well. Thus, although plaintiff Ellis quickly agreed with garnishee's counsel that odors and noises incident to operation of the slaughterhouse "had a bearing in our removal" from the farm to Springfield in May 1963 and plaintiff Della readily conceded "that might have been a contributing factor," she insisted that "we had several reasons to move" and that "the main reason we moved was because we were just gettin' too old [they were then in their seventies] . . . to take care of [the] cattle" on the farm. And in her unique style plaintiff Della pointed to the contamination of their well as the precipitating cause of litigation: ". . . they did clean that pond out but of course the odors just kept on and they said that the algae and all would finally take care of that . . . so we just went along with it and thought that would and, of course, when the blood got in the water, why, of course we had to do something because you can't afford to let your well go bad like that. . . ." Furthermore, even though the trial court's answers to the interrogatories propounded by defendant's counsel at the close of the evidence in the nuisance action do not foreclose inquiry in the garnishment proceeding as to whether plaintiffs' damages were "caused by accident," those answers do serve to indicate definitely that at least the primary, if not the sole, basis for the monetary judgment was the contamination of plaintiffs' well. For, the court gave an affirmative answer to the request for a finding as to whether plaintiffs' damage occurred "within the period of 2/1/64 and 5/1/64" (that being the period during which the water in the well became "just bloody" and laboratory tests confirmed its contamination) and, in responding to counsel's request that "the court set forth its method for determining the amount of damages," the court found "that the act of the defendant complained of occurring on or about February, 1964. . . damages plaintiffs in the amount of $6,000."
Although not here disputing the sufficiency of the evidence to establish that the odors and noises [the subjects of complaints (a), (b) and (c) in the amended petition] were undesirable by-products of defendant's operations, garnishee's counsel do contend that the record is insufficient to permit a finding of causal connection between those operations and the contamination of plaintiffs' well. Isolated statements, taken out of context, might afford some support for such contention. Thus, when plaintiff Ellis was asked whether he knew "how it [the pollution] got" in the well, he replied, "no, I don't know"; and, in the course of an extended answer about blood in the well, plaintiff Della gratuitously interjected the unresponsive comment, "of course we didn't know the cause." But taken in its entirety, the transcript on appeal does not indicate that garnishee's counsel seriously doubted or denied that some facet of defendant's slaughterhouse operation had resulted in contamination of plaintiffs' well. For example, counsel asked plaintiff Ellis "now, do you have any knowledge of your own as to whether it was the pond, that residue of the pond, that filtered down and got into your well water or whether it was residue from the slaughterhouse itself," to which the witness responded "well, I don't have any personal knowledge." And similarly garnishee's counsel inquired of plaintiff Della, "do you have
The burden of garnishee's appellate cause is simply that, in any event, plaintiffs' damages were not "caused by accident." Garnishee's counsel initiate their argument on this issue with the following presentation which, upon close examination, becomes self-contradictory and self-destructive: For definitional purposes, counsel accept the holding of a divided court in Thomason v. United States Fidelity & Guaranty Co., 5 Cir. (Ala.), 248 F.2d 417, 419(1), that "caused by accident" has the same meaning as "accidental means" and then, to import this holding into Missouri, rely upon Applebury v. John Hancock Mutual Life Ins. Co., Mo.App., 379 S.W.2d 867, where, in a suit on a double indemnity provision of a life insurance policy, it was said that "means" is equivalent to "cause" [1. c. 870(4)], that "[t]here are two lines of decisions with respect to `accidental means' being distinguishable from `accident' or `accidental death,'" and that Missouri courts are among those recognizing such distinction. [1. c. 870]
In this connection, it becomes appropriate to observe that Applebury, supra, and other Missouri cases
Without essaying definition of the term "accident," garnishee's counsel assert that plaintiff's damages were not "caused by accident" because defendant's acts were "intentional" and the subsequent damages were "the natural consequence" of such acts and were "readily foreseeable." It is true that, as a matter of public policy, a liability insurance contract does not afford coverage for damage intentionally inflicted by the insured,
We pass to the conjunctive contention of garnishee's counsel that plaintiffs' damages were not "caused by accident" because they were "the natural consequences" of defendant's acts and were "readily foreseeable." Counsel have cited, and we have found, no supporting Missouri case. Although that doctrine was approved in Kuckenberg v. Hartford Accident & Indemnity Co., 9 Cir. (Or.), 226 F.2d 225, 226 (2-4), and American Casualty Co. of Reading, Pa. v. Minnesota Farm Bureau Service Co., 8 Cir. (Minn.), 270 F.2d 686, 691-692, upon which instant garnishee relies, and similar holdings may be found in a number of other cases cited marginally,
However, we regard as more logical and reasonable, and therefore align ourselves with, the holdings in a larger number of jurisdictions that damages not intentionally inflicted but resulting from an insured's negligence (and thus constructively foreseeable to him) may be "caused by accident" and within the coverage afforded by a liability insurance policy.
Finally, garnishee argues that plaintiffs' suit was "a nuisance case, not an accident case," that their first amended petition alleged that defendant's acts were "constant and continuous," and that "[a]cts which are done with knowledge and which continue over a long period of time and which continuously cause damage cannot be termed accidents." American Casualty Co. of Reading, Pa. v. Minnesota Farm Bureau Service Co., supra, 270 F.2d at 691; Clark v. London & Lancashire Indemnity Co. of America, 21 Wis.2d 268, 124 N.W.2d 29, 35, 98 A.L.R.2d 1037, 1045. Garnishee's apparent assumption that "a nuisance case" cannot be "an accident case" is untenable. Although, as we have said in considering the subject of collateral estoppel, negligence is not a necessary ingredient of the wrong of maintaining a nuisance [see cases cited marginally in note 5], negligence and nuisance may and frequently do coexist [Pearson v. Kansas City, 331 Mo. 885, 895, 55 S.W.2d 485, 489; Rodgers v. Kansas City, Mo.App., 327 S.W.2d 478, 482; 65 C.J.S. Negligence § 1(10), p. 452]; and, in several reported cases in which complainants sought both injunctive abatement of an alleged nuisance and also a monetary judgment, it was said that the damages were, or properly might have been found to have been, "caused by accident" and thus within the coverage afforded by liability insurance policies.
In The Travelers v. Humming Bird Coal Co., Ky., 371 S.W.2d 35 (1963), the water supply of an adjacent property owner had been "overrun" as the result of an earth mass gradually moving and slipping across his boundary line due to insured's strip mining operations on a nearby mountainside. In affirming a judgment that the property owner's damage had been "caused by accident" within the coverage afforded by insured's liability insurance policy, the court said that "[t]he accident mentioned in the policy need not be a blow but may be a process" and "[w]here the accident is a process, how long is then not significant whether it takes three hours, three weeks or months." 371 S.W.2d at 38(2, 3).
In Kissel v. Aetna Casualty & Surety Co., Mo.App., 380 S.W.2d 497, plaintiffs-insureds sued defendant-insurer on a general liability policy to recover the settlement sums, litigation expenses, attorneys' fees and court costs paid in the defense and disposition of five suits instituted by property owners against said insureds in 1957 for damages resulting from the sinking and sliding of earth on a contiguous school site, which condition was first detected in 1952 while insureds' subcontractor was grading and excavating the playground area and athletic field and, sometime after attempted correction and stabilization by the subcontractor, recurred and became progressively worse. In approving the judgment for plaintiffs-insureds, excepting only for statutory damages for vexatious refusal to pay [§ 375.420], the St. Louis Court of Appeals in Kissel quoted with approval from The Travelers, supra, and then declared that "[w]e agree . . . that the accident mentioned in the policy may be a process . . . ." 380 S.W.2d at 509. Application to transfer Kissel was denied by the Supreme Court of Missouri on September 14, 1964, under docket number
"Accident" is a chameleonic term, taking on different hues and shades of meaning in different circumstances, contexts and classes of cases, as is graphically portrayed and convincingly confirmed on the 192 pages devoted to that term in 1 Words and Phrases (beginning at page 466) and the current pocket part, on the 34 pages devoted to it in 1 C.J.S. (beginning at page 425) and the current pocket part, and in the 129 cases (each of which has been examined by us) listed in 32 West's Missouri Digest, Words and Phrases, and the current pocket part. It is indeed a term "susceptible of being given such scope that one would hardly venture to define its boundaries." Soukop v. Employers' Liability Assur. Corp. of London, England, 341 Mo. (banc) 614, 626, 108 S.W.2d 86, 91, 112 A.L.R. 149, 154. All of which makes it readily understandable why no definition of the term has been attempted by counsel here but moves us to confess our wonderment that insurers throughout the years have issued innumerable liability policies employing the phrase "caused by accident," and apparently still continue so to do, without defining either that phrase or the critical word "accident." Seventy-five years ago, before the judicial definitional jungle had become anything like as dense as it is now, our Supreme Court in Lovelace v. Travelers' Protective Ass'n., 126 Mo. 104, 114, 28 S.W. 877, 879, 30 L.R.A. 209, concluded a melange of dictionary and judicial definitions of "accident" with the comment that the definitions had been quoted "not with a view to approve or criticize any one of them, but to indicate the very wide range of meaning borne by the word `accident,' when unaccompanied with any limitation in the context," and disclaimed any "attempt to furnish any general definition of an accident in the particular case before us, further than the conclusion we shall announce may imply."
We need not and do not undertake this definitional venture which insurers and their erudite counsel so long have shunned and which sager and less timorous jurists than we frequently have eschewed. An insurance policy must be construed liberally in favor of the insured so as not to defeat, without plain necessity, his claim to indemnity which in procuring the insurance it was his object to secure. Schmidt v. Utilities Ins. Co., 353 Mo. 213, 219, 182 S.W.2d 181, 183(2), 154 A.L.R. 1088; McManus v. Farmers Mutual Hail Ins. Co. of Missouri, 239 Mo.App. 882, 890, 203 S.W.2d 107, 112(5); Columbia Paper Stock Co. v. Fidelity & Casualty Co. of New York, 104 Mo.App. 157, 168, 78 S.W. 320, 323. And nothing in the field of insurance law is more conclusively settled than that, where the language of a policy is reasonably susceptible of different constructions, the courts must adopt the construction least favorable to the insurer and most favorable to the insured. Hammontree v. Central Mutual Insurance Co., Mo. App., 385 S.W.2d 661, 665(2), and cases collected in note 4; Clarkson v. MFA Mutual Insurance Co., Mo.App., 413 S.W.2d 10, 12(1), and cases collected in notes 1 and 2.
We have not overlooked the fact that the trial judge was of the opinion, contrary to our determination of the question here, that the findings and judgment of the circuit court in the nuisance action collaterally estopped denial in the garnishment proceeding that plaintiffs' damages had been "caused by accident." However, careful examination of the trial judge's six-page "Memorandum and Order" reveals that nevertheless he carefully considered
Believing as we do that the principles discussed and authorities cited in this opinion manifest the propriety of a finding that plaintiffs' damages by reason of the contamination and loss of their well were "caused by accident" and again emphasizing that garnishee "makes no claim here that part of what [defendant] did is covered and part is not" [Zipkin v. Freeman, supra, 436 S.W.2d at 761, 765], we conclude that the judgment in the garnishment proceeding should be affirmed. It is so ordered.
HOGAN, P. J., and TITUS, J., concur.