Opinion
No. C-223.
November 21, 1961.
Appeal from the Circuit Court, Leon County, Hugh M. Taylor, J.
Fisher Hepner, Pensacola, for appellant.
Richard W. Ervin, Atty. Gen., Robert J. Kelly, Asst. Atty. Gen., and James G. Mahorner, Asst. Atty. Gen., representing J. Edwin Larson as Receiver of appellee.
The plaintiff has appealed from an order entered by the Circuit Court for Leon County dismissing her amended complaint in an action against the defendant insurance company upon a foreign judgment she had obtained against a person covered by a public liability insurance policy issued by the defendant.
Since on this appeal we are reviewing the action of the trial court in granting the defendant's motion to dismiss the amended complaint, we are confined in our consideration to the allegations contained within the four corners of the plaintiff's amended complaint, together with the exhibits attached to and made a part of the amended complaint.
The plaintiff in her amended complaint alleges that she is a resident of the State of Missouri and that the defendant is a foreign corporation organized under the laws of the State of Delaware; that the defendant filed a power of attorney with the Insurance Commissioner of Florida authorizing the Commissioner to accept service of process on behalf of the defendant; and that the National Automobile Insurance Association is the managing agent for the defendant and has its office and place of business in Atlantic Beach, Florida. She alleges that the defendant issued a policy of automobile liability insurance to one Eugene H. Wegner, indemnifying him against loss imposed by law for damages on account of bodily injuries suffered within the policy limits by a third person or persons, and that on April 14, 1958, the said Wegner caused or brought about bodily injury to the plaintiff by use of an automobile, as a result of which, in a certain cause in which she was the plaintiff and the said Wegner and one Charles T. Mitchell were the defendants, in the District Court of Lincoln County, State of Oklahoma, the plaintiff recovered a judgment from the said Wegner and the said Mitchell in the sum of $5,000 and costs in the amount of $9.30, which judgment still remains in full force and effect and has not been reversed, satisfied, paid or otherwise vacated.
The plaintiff in the present action attached to her amended complaint as Exhibit B a copy of the insurance policy issued by the defendant to the said Eugene H. Wegner. Attached as a part of the said policy is a copy of a rider containing the following provision:
"It is agreed that the insurance afforded by this policy shall not apply with respect to any claim arising from accidents which occur while any automobile is being operated by Any Person
Other Than _________________________ Wegner Eugene H"
The plaintiff attached to her complaint as Exhibit A and incorporated as a part of her allegations a copy of the said judgment entered by the District Court of Lincoln County, State of Oklahoma. This judgment contains the following provision, among others:
"The Court further finds that as a result of the negligence of the defendant, Charles T. Mitchell, who was acting as the agent of Eugene Henry Wegner, that the plaintiff was damaged in the sum of $5,000.00. That the negligence of the said Charles T. Mitchell as alleged was the approximate cause of the injuries sustained by the plaintiff and that the plaintiff should recover against the defendants or either or them in the sum of $5,000.00."
In this judgment the District Court of Lincoln County found that the plaintiff was a guest riding in an automobile owned by the said Wegner and being driven by the said Mitchell, who went to sleep or allowed the car which he was driving to run into a guard rail.
By alleging in her amended complaint, as aforesaid, that the insurance afforded by the liability insurance policy issued by the defendant should not apply with respect to any claim arising from accidents which occur while any automobile is being driven by any person other than the said Wegner, the insured, and that her claim did arise while the automobile was being operated by the said Mitchell, the plaintiff has, in effect, "pleaded herself out of court" and has failed to allege a cause of action in her amended complaint. The trial court was eminently correct in granting the defendant's motion to dismiss that complaint.
The brief of the appellee was filed in this appeal by the Attorney General of Florida, as "of Counsel for Appellee." The Attorney General, the chief legal officer of this state under our Constitution, represents the Honorable J. Edwin Larson, State Treasurer and ex officio Insurance Commissioner of the State of Florida, who, in a proceeding in the Circuit Court for Duval County, Florida, was by an order entered shortly after the present appeal was instituted, appointed the Receiver of the appellee, National Automobile Insurance Company.
Affirmed.
STURGIS and WIGGINTON, JJ., concur.