Barber v. Hartford Life Ins. Company

• Decision Date: 09 July 1919
• Parties: ROSA BARBER v. HARTFORD LIFE INSURANCE COMPANY, Appellant
• Court: Missouri Supreme Court

214 S.W. 207

279 Mo. 316

ROSA BARBER v. HARTFORD LIFE INSURANCE COMPANY, Appellant

Supreme Court of Missouri, First Division

July 9, 1919

Appeal from Johnson Circuit Court: -- Hon. C. A. Calvird, Judge.

Affirmed.

Jones Hocker, Sullivan & Angert, Geo. F. Haid and James C. Jones Jr., for appellant.

(1) The Connecticut court was a court of competent jurisdiction to determine the question of the right of the company to maintain the mortuary fund, and its decree was binding upon the company and all its members. Hartford Life Ins. Co v. Ibs, 237 U.S. 662; Royal Arcanum v. Green, 237 U.S. 531; Hartford Life Ins. Co. v. Barber, 245 U.S. 146; Condon v. Mutual Reserve, 89 Md. 99; Taylor v. Mutual Reserve, 97 Va. 60; State ex rel. Hartford Life Ins. Co. v. Shain, 254 Mo. 78. (2) The issue as to the right and propriety of maintaining the mortuary fund and the amount that could properly be held in such fund was involved in the Connecticut case and in the case at bar. Hartford Life Ins. Co. v. Ibs, 237 U.S 662; Southern Pacific Co. v. United States, 168 U.S. 1; Klein v. Insurance Co., 104 U.S. 88. (3) The circuit court denied full faith and credit to the decree of the Connecticut court in the Dresser case by its assumed finding as a fact, without support in the evidence and against the evidence, that the assessment in question was excessive and illegal. Creswill v. Knights of Pythias, 225 U.S. 246; Northern Pacific v. North Dakota, 236 U.S. 585. (4) All questions presented at the second or last trial were before the trial court on the first trial and appeared in the record on the former appeal in the Supreme Court of Missouri and the Supreme Court of the United States and the judgment of the Supreme Court of the United States became res judicaia upon all matters and questions appearing in the record. United States Trust Company v. New Mexico, 183 U.S. 535; Chaffin v. Taylor, 116 U.S. 567; Tyler v. Maguire, 17 Wall. 283; Pitkin v. Shacklett, 117 Mo. 548; Hill v. Draper, 37 S.W. 574; Castleman v. Buckner, 202 S.W. 681; Illinois Life Ins. Co. v. Wortham, 119 S.W. 802; Clark v. Brown, 119 F. 130; McLure v. Bank, 263 Mo. 135. (5) The assessments collected by Hartford Life Insurance Company in Missouri were subject to the two per cent tax upon all premiums collected in the State. Sec. 7068, R. S. 1909, as construed by the trial court, imposes its penalties for failure to pay a policy of life insurance regardless of the good faith of the defense, and so construed, it deprives the defendant of its property without due process of law. Supreme Ruling v. Snyder, 227 U.S. 497; Ry. Co. v. Chicago, 166 U.S. 226.

Robert Kelley, M. D. Aber, Nick M. Bradley and Charles E. Morrow for respondent.

(1) The burden was on defendant to show that the assessment was necessary, not excessive and legally made. Barber v Hartford Life Insurance Co., 269 Mo. 21; Hannum v. Waddill, 135 Mo. 153; Barney v. Modern Woodmen, 79 Mo.App. 385; Agnew v. A. O. U. W., 17 Mo.App. 254; Puschman v. Insurance Co., 92 Mo.App. 640; Johnson v. Hartford Life Ins. Co., 166 Mo.App. 275; King v. Hartford Life Ins. Co., 133 Mo.App. 612; Wayland v. Indemnity Co., 166 Mo.App. 221; Settle v. Ins. Co., 150 Mo.App. 520; Ibs v. Hartford Ins. Co., 121 Minn. 310. (2) The assessment is excessive and void. It was not calculated, computed or levied in accordance with the terms of the policy. (a) It contained a two per cent tax, not assessed by the company, against the assured, attempted to be collected in advance, in violation of the provisions of the terms of the policy, which was not shown was even levied and assessed by the Superintendent of Insurance, and which, under the law of Missouri, could not be levied against the assessment and was an illegal charge against assured. R. S. 1909, sec. 7099; Northwestern Masonic Aid Assn. v. Waddill, 138 Mo. 628; Westerman v. Supreme Lodge, 196 Mo. 670; Bankers Life Company v. Chorn, 186 S.W. 618; Young v. Hartford Life Ins. Co., 277 Mo. 694. (b) The dues were not payable until October, 1910, and the dividend of $ 1.40, in the defendant's hands, should have been applied in reduction of the assessment, and it is excessive on that account. (3) The defendant wrongfully collected from assured two per cent on all the assessments he had paid on the policy, covering a period of seventeen years, amounting to more than the assessment in question, and defendant was indebted to assured for the amount so wrongfully collected, and should have applied it to the assessment or to reduce it. National Council of Junior Order v. Thomas, 163 Ky. 364; Citizens Life Ins. Co. v. Boyle, 139 Ky. 1; Niblick on Benefit Societies, sec. 71. (4) By amending its answer, after this case was reversed and remanded, and pleading the failure to pay a subsequent assessment, due June 1, 1910, the defendant waived the alleged forfeiture for failure to pay the prior assessment for which it claims the policy was forfeited. Beatty v. Mutual, etc., Ins. Co., 75 F. 65; Murray v. Home Benefit Life Assn., 90 Cal. 402; Union Central Life Ins. Co. v. Jones, 17 Ind.App. 592; Union Central Life Ins. Co. v. Woods, 11 Ind.App. 335; Union Central Life Ins. Co. v. Spinks, 119 Ky. 261; Moreland v. Union Central Life Ins. Co., 104 Ky. 129; Union Central Life Ins. Co. v. Moreland, 56 S.W. 653; Union Central Life Ins. Co. v. Duvall, 46 S.W. 518; National Life Ins. Co. v. Reppand, 81 S.W. 1012; Insurance Co. v. Springgate, 129 Ky. 627; Assurance Soc. v. Ellis, 147 S.W. 1152; 25 Cyc. 871. No notice of the subsequent assessment was given assured. Besides, the defendant claimed a forfeiture for failure to pay assessment due March 1, 1910, before suit, and on that ground only. Thereby, as a matter of law, it waived its right to claim a forfeiture on any other ground. Burges v. Ins. Co., 114 Mo.App. 180; Home Ins. Co. v. Pierce, 75 Ill. 426; Moore v. National Acc. Soc., 38 Wash. 31. (5) The defendant did not show that the notice of the assessment was ever mailed. It cannot be proven by affidavit. Patterson v. Fagan, 38 Mo. 70; 2 C. J. 373. The stipulation in the policy, providing that a certificate of the secretary, supported by the affidavit of the person who mailed the notice, should be conclusive proof, is inconsistent with the impartial course of justice, as administered under the law of Missouri, and is against public policy and void. Hope Mutual Ins. Co. v. Flynn, 38 Mo. 483; 13 C. J. sec. 382, p. 46; French v. Willer, 126 Ill. 611; Hamilton v. Schoenberg, 47 Iowa 2385; Supreme Council v. Forsinger, 125 Ind. 52; Fidelity & Casualty Co. v. Eickhoff, 63 Minn. 170; New York Fidelity, etc., Co. v. Crays, 75 Minn. 450; Guaranty Co. of North America v. Charles, 92 S.C. 282; Mutual Reserve Fund Assn. v. Cleveland Woolen Mills, 82 F. 580; Doyle v. Continental I. & S. Co., 94 U.S. 535; Home Ins. Co. v. Morse, 20 Wall. (U.S.) 445; Mute v. Hamilton Ins. Co., 6 Gray (Mass.), 174; Buell v. Railroad, 53 N.Y.S. 749. (6) The dues under the policy were not payable until October, 1910, and defendant cannot forfeit the policy for failure to pay them before that date. Barber v. Hartford Life Ins. Co., 269 Mo. 40. (7) The Supreme Court of the United States reversed this case for the sole reason, as stated in its opinion, that the decisions of this court, affirming the judgment of the trial court, failed to give full faith and credit to the Connecticut decree, and that this error inhered in the instructions to the jury. It remanded this cause for further proceedings, not inconsistent with the opinion of this court. In obedience to this mandate, this court reversed the judgment and remanded this cause generally for a new trial. (8) The opinion of the Supreme Court of the United States did not hold the assessment in this case to be valid, nor did it decide the questions presented to the trial court, and presented here. On the contrary, the opinion of the Supreme Court of the United States recognized that there were both questions of law and fact left open in the case. The defendant, realizing this, amended its answer, setting up a new defense, and the plaintiff filed a reply thereto, pleading new and additional defenses, and the issues were changed. By so doing, defendant waived the question that the case was not properly remanded for a new trial and that questions were not left open to be determined by the trial court. Carrico v. Lilly, 3 O. K. Marsh (Ky.), 389; Howell v. Sherwood, 242 Mo. 513. (9) By remanding this cause generally for a new trial, without specific directions, this court gave the parties the right to amend their pleadings, and make any legal claim or defense, not concluded by the opinion of the United States Supreme Court. Wilcox v. Phillips, 260 Mo. 676. (10) Only such questions as were passed upon by the Supreme Court of the United States became the law of this case. That decision cannot be extended to matters not decided. In re Potts, 166 U.S. 263; Mutual Life Ins. Co. v. Hill, 193 U.S. 551; Ex parte Union Steamboat Co., 178 U.S. 317; In re Sanford Fork & Tool Co., 160 U.S. 247; Barney v. Winona Railroad Co., 117 U.S. 228; Tanizer v. Railroad, 191 F. 547; Gwinn v. Waggoner, 116 Mo. 151; Howell v. Sherwood, 242 Mo. 513. (11) By reversing this case on one ground, the Supreme Court of the United States did not consider and decide all the questions presented or which might arise at a further trial of the cause. Mutual Life Ins. Co. v. Hill, 193 U.S. 551. (12) Sec. 7008, R. S. 1909, as amended, providing for damages and attorney's fees, for vexatious refusal to pay a policy of life insurance, is constitutional. Barber v. Hartford Life Ins. Co., 269 Mo. 21; Keller v. Home Life Ins. Co., 198 Mo. 440; Farmer Ins. Co. v. Dobney, 189 U.S. 301; Fraternal Mystic Circle v. Snyder, 227 U.S. 497; Manhattan Life Ins. Co. v. Cohen, 234 U.S. 123; ...