141 F. 54 (8th Cir. 1905), 2,151, Williamson v. Liverpool & London & Globe Ins. Co.

Docket Nº:2,151.
Citation:141 F. 54
Case Date:November 13, 1905
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit

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141 F. 54 (8th Cir. 1905)




No. 2,151.

United States Court of Appeals, Eighth Circuit.

November 13, 1905

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Boyle & Guthrie, for plaintiff in error.

M. A. Fyke and Ed. E. Yates, for defendant in error.

Florence Williamson sued the insurance company to recover the amount of a total loss under three policies of fire insurance, and in addition thereto damages for vexatious delay in payment, and attorney's fees. During the progress of the litigation which ensued the company tendered and deposited in court the entire amount of the policies and costs to that time. Thereafter the controversy, which was confined to the matter of damages and attorney's fees, was determined in favor of the company. The plaintiff then instituted this proceeding in error.

Before SANBORN, HOOK, and ADAMS, Circuit Judges.

HOOK, Circuit Judge, after stating the case as above, .

The claim for damages and attorney's fees, in addition to the loss under the policies, was asserted upon the authority of a Missouri statute, which provides that, if in an action upon a policy of insurance it appears from the evidence that the company has vexatiously refused to pay, the court or jury may in addition to the amount of the loss allow the plaintiff damages not exceeding 10 per cent. thereof, and also a reasonable attorney's fee. Rev. St. Mo. 1899, Sec. 8012. The plaintiff's petition contained appropriate averments in support of her rights under the statute, but upon motion of the company and trial court ordered them stricken out and gave the plaintiff three days in which to file an amended petition. Exceptions to this ruling were duly preserved. The learned district judge applied to the case the doctrine of Gulf, etc., Ry. Co. v. Ellis, 165 U.S. 150, 17 Sup.Ct. 255, 41 L.Ed. 666, and held that the Missouri statute was in contravention of the equality clause of the fourteenth amendment, in that, being directed against insurance companies alone, it deprived them of the equal protection of the laws. The plaintiff thereupon filed an amended petition precisely like the original, except that the averments relating to the additional damages and attorney's fees were omitted. Afterwards, but

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while the cause was still pending, the cases of Life Association v. Mettler, 185 U.S. 308, 22 Sup.Ct. 662, 46 L.Ed. 922, and Insurance Co. v. Lewis, 187 U.S. 335, 23 Sup.Ct. 126, 47 L.Ed. 204, were decided. In the Ellis Case the Supreme Court had held to be unconstitutional a state statute which imposed upon railroad corporations a penalty in the shape of a liability for attorney's fees for failure to pay certain debts. In the opinion of that court the power of reasonable classification of the subjects of state legislation and the adaptation of different rules to the different classes was admitted, but it was said that the classification 'must always rest upon some difference which bears a reasonable and just relation to the act in respect to which the classification is proposed, and can never be made arbitrarily and without any such basis. ' It was also held that the debts, the failure to pay which gave rise to the penalty, were not so different from those of other corporations as to justify the hostile discrimination against railroad companies alone.

In the Mettler Case it was decided that a classification of life and health insurance companies separately from fire, marine, and inland insurance companies and mutual benefit and relief organizations doing business through lodges and benevolent associations was not so arbitrary or devoid of reasonable basis as to be subject to constitutional objection. A state statute was therefore upheld which imposed upon life...

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