General Insurance Co., of America v. Ham, State Insurance Commissioner, 1959

CourtUnited States State Supreme Court of Wyoming
Writing for the CourtBLUME, Justice.
Citation57 P.2d 671,49 Wyo. 525
Docket Number1959
Decision Date05 May 1936
PartiesGENERAL INSURANCE COMPANY OF AMERICA v. HAM, STATE INSURANCE COMMISSIONER

57 P.2d 671

49 Wyo. 525

GENERAL INSURANCE COMPANY OF AMERICA
v.

HAM, STATE INSURANCE COMMISSIONER

No. 1959

Supreme Court of Wyoming

May 5, 1936


APPEAL FROM the District Court of Laramie County, SAM M. THOMPSON, Judge.

Action for a declaratory judgment by the General Insurance Company of America, a Washington corporation, against Arthur J. Ham, as State Insurance Commissioner. From an adverse judgment, defendant appeals.

Reversed, with Directions.

For the appellant there was a brief by James A. Greenwood, Special Counsel, Ray E. Lee, Attorney General, Thomas F. Shea, Deputy Attorney General, and Wm. C. Snow, Assistant Attorney General, and oral argument by Mr. Greenwood and Mr. Lee.

The action was brought under the provisions of Section 89-2401 to 89-2416, R. S. 1931, known as the Uniform Declaratory Judgments Act, for mandatory relief. Defendant demurred to the petition. The demurrer was overruled and defendant elected to stand thereon, declining to plead further, whereupon the court rendered judgment. The form of standard fire insurance policies is prescribed by statute 57-218, R. S. The policy in controversy does not comply with this statute. The allegation that a controversy existed between respondent and appellant is a mere conclusion of law. Smith v. Stone, 21 Wyo. 62; Male v. Atchison R. Co. 129 N.E. 458; R. Co. v. Barker, 83 N.E. 369; Ry. Co. v. Dey, 48 N.W. 98; Sutherland v. Sutherland, 71 N.W. 424; Wells-Dickey Company v. Embody, 266 P. 869; 21 R. C. L. 506; 49 C. J. 379. Only material allegations of the petition are admitted by the demurrer. Edwards v. City of Cheyenne, 19 Wyo. 110; State v. Irvine, 14 Wyo. 318; Ricketts v. Crewdson, 13 Wyo. 284; Zeigler v. Pickett, 46 Wyo. 283. The controversy must be of a justiciable character to warrant a declaratory judgment. Zeigler v. Pickett, supra. The defendant is without legal authority to make the endorsement demanded. Company v. Baldwin, 234 P. 348; Insurance Company v. Trust Company, 175 P. 930; Fort v. Insurance Company, 173 N.Y.S. 595. The case of Trega v. Irrigation District supports appellants contention. The judgment below was in conflict with Section 57-218. Courts will not render declatory judgments unless they will serve a useful purpose. Bank v. Bank, 19 A. L. R. 1101; Holt v. County, (Mont.) 243 P. 811; Stinson v. Graham, 286 S.W. 264; Kariher's Petition, 284 Pa. 445. 131 A. 265; Revis v. Daugherty, (Ky.) 287 S.W. 28; Burton v. Realty & Insurance Company, (N. C.) 125 S.E. 3; Patterson v. Patterson, (Va.) 131 S.E. 217; Kelly v. Jackson, (Ky.) 268 S.W. 539; Smith v. Atty. Gen., (Can.) 3 D. L. R. 189; Miller v. Miller, (Tenn.) 261 S.W. 965; 68 A. L. R. 117, additional note and cases cited therein; Loan Company v. Hickerson, 73 S.W.2d 694; Holly Sugar Corporation v. Fritzler, 42 Wyo, 446; Arnold v. Bond, 34 P.2d 28; Muskrat v. U.S. 219 U.S. 346; Company v. Grannis, 273 U.S. 70; Willing v. Association, 277 U.S. 274; Arizona v. California, 75 L.Ed. 1154; Ry. v. Wallace, 77 L.Ed. 734; Alabama v. Arizona, 78 L.Ed. 798. Official discretion cannot be controlled by the courts. State v. Coleman, 155 So. 129; Campbell v. City of New York, 155 N.E. 628; State v. District Court, 168 N.W. 634; Telephone Company v. South Dakota, 250 U.S. 163; Root v. City, (Kan.) 180 P. 229; Boyle, Chief Inspector v. Mining Company, 256 P. 883; Mutual Benefit Insurance Company v. Welch, 175 P. 45; Moore v. Porterfield, 257 P. 307. The judgment of the trial court would require defendant to violate subdivision 8, Section 57-216, R. S., and constitute an act of discrimination prohibited by other statutes. Robinson v. Wolfe, 62 N.E. 74; Smathers v. Insurance Company, (N. C.) 65 S.E. 746; Insurance Company v. Tabor, (Texas.) 230 S.W. 397. The same principle is recognized in State v. Schnitger, 16 Wyo. 479.

For the respondent, there was a brief and the cause was argued orally by R. J. Jackson of Cheyenne and Ralph S. Pierce of Seattle, Washington.

The appeal should be dismissed for want of jurisdiction. The record does not show entry of the judgment nor compliance with Section 89-4906, R. S. 1931. Coffee v. Harris, 27 Wyo. 394; Thomas v. Biven, 32 Wyo. 478. The record is not certified as being true and correct. Company v. Thompson, 47 Wyo. 519. The record does not show that any judgment was ever entered. The case appears to fall squarely within the facts of Holliday v. Bundy, et al., 42 Wyo. 61. If the court finds that it has jurisdiction to consider the appeal on the merits, we offer the following authorities and points in resistance of the appeal. Respondent is entitled as a matter of right to issue the proposed endorsement. The matter presented to the trial court clearly constitutes a justiciable matter and a declaratory judgment was the appropriate remedy. The order of the commissioner forbidding the issuance of the endorsement is subject to review by the court. Sec. 57-218 R. S. by its terms applies to all companies whether stock or mutual. Every word of a statute must be given effect. Miller v. Bank, 296 P. 796; Daley v. Torrey, 230 P. 782; Dun v. Bryan, (Utah) 299 P. 233; Ross v. Trustees, 31 Wyo. 464. Similar statutes are in effect in the states of Idaho, Nebraska, Washington and Wisconsin. Subdivision 5 of the section expressly designates "mutual or other company." All other provisions of the standard policy thereof are made applicable to both mutual and stock companies. The legislature was not opposed to a participating policy. Sec. 57-422, R. S.; Elgin v. Winchester, 133 N.E. 205; State v. Insurance Company, 134 So. 858; Annotations in 77 A. L. R. 1494; 14a C. J. 1250. The case of State v. Connecticut, 144 N.E. 130 is strictly in point. The theory of the participating policy is set forth in the decision of this court in State v. Jay, 37 Wyo. 189. The action was probably brought under the Declaratory Judgment Act. Sec. 89-2401 to 89-2416, R. S. Terrance v. Thompson, 263 U.S. 197; Pierce v. Society of Sisters, 268 U.S. 510. The need of a declaratory decree was imperative since the insurance code is full of penalties. Secs. 57-204, 215, 429, 442; Washington Company v. Moore, (Mich. ) 229 N.W. 618; The cases cited by appellant from the United States Supreme Court were all decided before the enactment of the Federal Declaratory Judgment Act (Sec. 274D of Judicial Code, 28 U.S.C. A. 400). In Nashville v. Wallace, 288 U.S. 249, the Supreme Court took jurisdiction of and decided an action brought in Tennessee under its Declaratory Judgment Act. Jurisdiction has been assumed and declaratory relief granted in a great variety of cases cited by Borchard in his work on Declaratory Judgments. See page 341, et seq. See also Lagoon Club v. County 270 P. 543; Trust Company v. McCallister, (Ore.) 299 P. 319; Ins. Company v. Baker, (Kan.) 244 P. 862; Chung Mee Company v. Banker, (N. H.) 171 A. 263; Insurance Company v. Freedy, (Wis.) 227 N.W. 952; Multnomah Association v. Langley, (Ore.) 13 P.2d 354; Sage-Allen Company v. Wheeler, (Conn.) 179 A. 195; Faulkner v. City of Keene, (N. H.) 155 A. 195. The act is remedial. Corporation v. Fritzler, 42 Wyo. 446. The judicial discretion vested in the courts has already been exercised in this case. The Appellate Court will not review the trial Court's decision in absence of manifest abuse. Hunt v. City of Laramie, (Wyo.) 181 P. 137; Kelly v. Eidam, 32 Wyo. 271; Morrison v. Development Company, 38 Wyo. 190; Schechter v. U.S. 29 L.Ed. 888. A law permitting an insurance commissioner to prepare and adopt a standard form of policy has been held unconstitutional. Nalley v. Insurance Company, (Mo.) 157 S.W. 769; Wylie v. Assurance Company, (Ariz.) 22 P.2d 845; Welch v. Casualty Company, 147 P. 1046; Insurance Company v. Hardison, (Mass.) 85 N.E. 410. Orders of the insurance commissioner are subject to review by the courts. State v. Loucks, 30 Wyo. 485. The proceeding below was sound and proper; the plan proposed by respondent is not against public policy and is not prohibited by any statute of the State, but is a plan favored by the legislature and beneficial to the insuring public.

BLUME, Justice. KIMBALL, CH. J., and RINER, J., concur.

OPINION

[49 Wyo. 530] BLUME, Justice.

This is an action for a declaratory judgment. We gather from the petition the following facts: Plaintiff, General Insurance Company of America, is a stock company duly organized and existing under the laws of the State of Washington relating to fire insurance companies; that the defendant Arthur J. Ham is the Insurance Commissioner of this state; that plaintiff has been and now is duly authorized to write policies of fire insurance in this state, and has a license to do so; that the articles of incorporation of the plaintiff, among other things, provide the following:

[49 Wyo. 531] "The said company shall be operated as a stock insurance company and may issue policies upon both the participating plan and the non-participating plan. The Board of Directors of said company may from time to time distribute equitably to the holders of participating policies issued by said company such sum out of the earnings as in its judgment is proper, after setting aside from said earnings such sums for dividends to be paid stockholders and for surplus as the Board of Directors shall see fit. Such distribution of earnings may be made by an equitable apportionment to holders of participating policies issued by the company irrespective of the class and character of their risk or risks, or the Board of Directors...

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4 practice notes
  • The Texas Company v. Siefried, 2276
    • United States
    • United States State Supreme Court of Wyoming
    • April 11, 1944
    ...United States and Canada, 6 Fed. (2d), C.C.A. Second Circuit, 1000, 1011, and cases cited." See also General Ins. Co. of America v. Ham, 49 Wyo. 525, 57 P.2d 671; Mitchell v. Walters, 55 Wyo. 317, 100 P.2d 102; Radalj v. Union Savings & Loan Assn., 59 Wyo. 140, 138 P.2d 984. If it be argued......
  • State ex rel. Goshen Irrigation District v. Hunt, Secretary of State, 1947
    • United States
    • United States State Supreme Court of Wyoming
    • May 5, 1936
    ...of Maryland, 254 U.S. 51, 41 S.Ct. 16, 65 L.Ed. 126; Territory v. Annette Island Packing Co., 6 Alaska 585, and Marin Municipal Water [49 Wyo. 525] District v. Chenu, 188 Cal. 734, 207 P. 251, relied on by relator, cannot be regarded as applicable here. The principles they announce have bee......
  • Anderson v. Wyoming Development Company, 2267
    • United States
    • United States State Supreme Court of Wyoming
    • December 13, 1944
    ...A petition for a declaratory judgment or decree can be disposed of on demurrer. General Insurance Company of America v. Ham, Commissioner, 49 Wyo. 525, 57 P. 2d 671; Beatty v. C., B. & Q. R. Co., 49 Wyo. 22, 52 P. 2d 404; Holly Sugar Company v. Fritzler et al., 42 Wyo. 446, 296 P. 206; Henc......
  • Gen. Ins. Co. of Am. v. State Ins. Bd., Case Number: 29991
    • United States
    • Supreme Court of Oklahoma
    • October 21, 1941
    ...valuable consideration or inducement whatever not specified in the policy." The board relies largely on General Insurance Co. v. Ham, 49 Wyo. 525, 57 P.2d 671. On the other hand, appellant largely relies on American Druggists' Fire Insurance Co. v. State Insurance Board, 184 Okla. 66, 84 P.......
4 cases
  • The Texas Company v. Siefried, 2276
    • United States
    • United States State Supreme Court of Wyoming
    • April 11, 1944
    ...United States and Canada, 6 Fed. (2d), C.C.A. Second Circuit, 1000, 1011, and cases cited." See also General Ins. Co. of America v. Ham, 49 Wyo. 525, 57 P.2d 671; Mitchell v. Walters, 55 Wyo. 317, 100 P.2d 102; Radalj v. Union Savings & Loan Assn., 59 Wyo. 140, 138 P.2d 984. If it be argued......
  • State ex rel. Goshen Irrigation District v. Hunt, Secretary of State, 1947
    • United States
    • United States State Supreme Court of Wyoming
    • May 5, 1936
    ...of Maryland, 254 U.S. 51, 41 S.Ct. 16, 65 L.Ed. 126; Territory v. Annette Island Packing Co., 6 Alaska 585, and Marin Municipal Water [49 Wyo. 525] District v. Chenu, 188 Cal. 734, 207 P. 251, relied on by relator, cannot be regarded as applicable here. The principles they announce have bee......
  • Anderson v. Wyoming Development Company, 2267
    • United States
    • United States State Supreme Court of Wyoming
    • December 13, 1944
    ...A petition for a declaratory judgment or decree can be disposed of on demurrer. General Insurance Company of America v. Ham, Commissioner, 49 Wyo. 525, 57 P. 2d 671; Beatty v. C., B. & Q. R. Co., 49 Wyo. 22, 52 P. 2d 404; Holly Sugar Company v. Fritzler et al., 42 Wyo. 446, 296 P. 206; Henc......
  • Gen. Ins. Co. of Am. v. State Ins. Bd., Case Number: 29991
    • United States
    • Supreme Court of Oklahoma
    • October 21, 1941
    ...valuable consideration or inducement whatever not specified in the policy." The board relies largely on General Insurance Co. v. Ham, 49 Wyo. 525, 57 P.2d 671. On the other hand, appellant largely relies on American Druggists' Fire Insurance Co. v. State Insurance Board, 184 Okla. 66, 84 P.......

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