Howell v. Connecticut Fire Ins. Co.

• Decision Date: 07 December 1923
• Docket Number: No. 3493.,3493.
• Citation: 215 Mo. App. 386,257 S.W. 178
• Parties: HOWELL v. CONNECTICUT FIRE INS. CO.
• Court: Missouri Court of Appeals

257 S.W. 178

215 Mo. App. 386

HOWELL v. CONNECTICUT FIRE INS. CO.

No. 3493.

Springfield Court of Appeals. Missouri.

December 7, 1923.

Rehearing Denied January 8, 1924.

Appeal from Circuit Court, Greene County; Guy D. Kirby, Judge.

Action by J. P. Howell against the Connecticut Fire Insurance Company. Judgment for defendant, and plaintiff appeals. Reversed and remanded.

L. H. Musgrave and C. W. Hamlin, both of Springfield, for appellant.

John Schmook, of Springfield, for respondent.

FARRINGTON, J.

This suit was begun in the justice court on a policy of insurance for $200, which had been taken out to cover the loss by fire on a Chevrolet car. The case reached the circuit court on appeal, and there a judgment was rendered for the defendant, from which an appeal is brought to this court.

The sole question to be determined here is, Did the plaintiff have an insurable interest in the automobile at the time the policy was issued and at the time of the fire? If it be determined that he had, then the plaintiff should recover, and, if he had no insurable interest, then the judgment of the trial court must be affirmed.

The facts of the case are: On December 22d, 1922, one S. G. Robertson was the owner lent and void." of the automobile which is the subject of the insurance. He had paid the premium for a $200 policy of insurance to defendant's agent, but the policy had not been delivered. On December 22, 1922, Robertson sold the automobile to the plaintiff, and the policy, instead of being issued to Robertson, was made directly to the purchaser of the car, the plaintiff. On December 22d Robertson delivered to the plaintiff the policy sued on, the certificate of title which had been issued to him by the Secretary of State, a bill of sale which gave the purchaser and seller's name and address, set forth the consideration paid for the car, and described the car in the exact words and figures as it is described in the face of the state certificate, covenanted that it was free from incumbrance, and that he had a legal right to dispose of same, and contained a warranty to defend the title against all claimants. The bill of sale was signed by S. G. Robertson; it was not acknowledged. On the 23d day of December, 1922, the car burned, and, after some negotiation with the insurance adjuster, liability was denied on the ground that the seller, S. G. Robertson, and the purchaser, d. P. Howell, had not conformed to the requirements of the law as set forth in the chapter on motor vehicles, found on page 76, Session Acts 1921, Extra Session, and particularly that portion of the law which relates to the transfer of cars and the certificates of title, found on page 90 (section 18) which provides, among other things:

"In the event of a sale or transfer of ownership of a motor vehicle or trailer for which a certificate of ownership has been issued the holder of such certificate shall indorse on the same an assignment thereof, with warranty of title in form printed thereon, and prescribed by the commissioner, with a statement of all liens or incumbrances on said motor vehicle or trailer, and deliver the same to the buyer at the time of the delivery to him of said motor vehicle or trailer."

Then follows the requirements of the buyer to present the certificate to the commissioner and pay $1, who shall, if everything is in proper form, issue a new certificate. The act also provides that the commissioner shall retain the old certificate as a record in his office, properly indexing the same, making it possible to trace the ownership of the motor vehicle described in the certificate.

It is further provided:

"Four months after this law takes effect and thereafter, it shall be unlawful for any person to buy or sell in this state any motor vehicle or trailer registered under the laws of this state, unless, at the time of the delivery thereof, there shall pass between the parties such certificate of ownership with an assignment thereof, as herein provided, and the sale of any motor vehicle or trailer registered under the laws of this state, without the assignment of such certificate of ownership, shall be fraudulent and void."

The law further provides that

"The commissioner shall determine the form in which application for such certificates of ownership and assignments shall be made, in case forms differing from those used for individuals are, in his judgment, reasonably required."

The act also provides penalties for various offenses, and contains the following blanket provision, which would cover a failure to properly comply with the law in reference to the assignment of motor cars:

"Any person who violates any of the other provisions of this act shall, upon conviction thereof, be punished by a fine of not less than five dollars ($5.00) or more than five hundred ($500.00) or by imprisonment in the county jail for a term not exceeding two years, or by both such fine and imprisonment." Section 29.

The form which the commissioner prescribed for assignments, and which is written on the back of each certificate of title issued by his office, is as follows:

"Assignment of Title."

"For value received I hereby sell, assign or transfer unto ___ (name of purchaser), (address) ___, Missouri, the motor vehicle described on the reverse side of this certificate, and I hereby warrant the title to said motor vehicle and certify that at the time of delivery the same is subject to the following liens or incumbrances, and none other: Amount,___. Kind, ___. Date, ___. Favor of ___.

"[Signed], Assignor."

Following this assignment of title is a form for the assignor to acknowledge the execution of the assignment before a notary public. The point in this case upon which the defendant seeks to evade' liability is that this blank form of assignment on the certificate of title was not signed by Robertson, the assignor, nor was it acknowledged at the time the sale of the car was made, at the time the insurance was written, and at the time of the fire. Respondent therefore points to the law which by its expressed terms requires that an assignment be executed in the form prescribed by the commissioner, and further provides that a failure to comply with this law renders, the transaction "unlawful, fraudulent, and void," and a provision setting forth the penalty for such failure; the theory being that the law not having been complied with, with reference to the sale of motor vehicles, the sale' from Robertson to plaintiff was unlawful, fraudulent and void, and that therefore the consideration for the purported sale being unlawful the transaction between the parties, as they undertook to carry out the sale, vested no title or interest whatever to the car in the plaintiff, and having no interest or title he could have no insurance.

It is admitted that the plaintiff must have an insurable interest in order to recover on an insurance policy, but it is contended by the plaintiff that what was done in the acquisition of this car by him was a substantial compliance with the law, which vested title to the car in him, and therefore gave him an insurable interest in it; on the other hand, the defendant contending that the failure on the part of the parties to comply with the statute renders the transaction unlawful, fraudulent and void, and therefore plaintiff acquired no interest or title by reason thereof to the car which was burned.

The law as settled in Missouri seems to be that a disregard or a violation of positive law cannot be a consideration for a valid contract, and that such contracts will not be enforced in our courts, and this whether the act which is forbidden either at common law or by statutory law is malum in se or merely malum prohibitum. The following cases we think sustain the above statement of law: Downing v. Ringer, 7 Mo. 585; Pulitzer v. McNichols, 170 Mo. App. 709, 153 S. W. 562; Tri-State Am. Co. v. Forest Park Z. Am. Co., 192 Mo. 404, 90 S. W. 1020, 4 L. R. A. (N. S.) 688, 111 Am. St. Rep. 511, 4 Aim. Cas. SOS; O'Bannon v. Widick, 198 S. W. 432, written by this court, adopted by the Supreme Court in 281 Mo. 478, 220 S. W. 853; Tandy v. Elmore-Cooper Com. Co., 113 Mo. App. 409, 87 S. W. 614; Haggerty v. St. Louis, & S. Co., 143 Mo. 238, 44 S. W. 1114, 40 L. R. A. 151, 65 Am. St. Rep. 647; Kitchen v. Greenabaum, 61 Mo. 110.

With the exception of penalties provided merely as fiscal expedients or revenue excise regulations, the courts of Missouri have declared that contracts, the performance of which is a violation of law, are void, even though there is no express declaration in the statute declaring such transactions void. The Missouri cases on this subject are reviewed in an exhaustive opinion by Warrington, circuit judge, in Reichardt v. Hill, 236 Fed. 817. 150 C. C. A. 79. We must therefore hold that, if the parties to this transaction violated the Missouri law with reference to the sale of this automobile, then under the Missouri authorities the sale to the plaintiff was a nullity and void, and lie...