Iowa Bonding & Casualty Co. v. City of Marceline

• Citation: 255 S.W. 577
• Decision Date: 05 November 1923
• Docket Number: No. 14689.,14689.
• Court: Missouri Court of Appeals
• Parties: IOWA BONDLNG & CASUALTY CO. v. CITY OF MARCELINE.

255 S.W. 577

IOWA BONDLNG & CASUALTY CO. v. CITY OF MARCELINE.

No. 14689.

Kansas City Court of Appeals, Missouri.

November 5, 1923.

Appeal from Circuit Court, Linn County; Fred Lamb, Judge.

"Not to be officially published."

Action by the Iowa Bonding & Casualty Company against the City of Marceline. A demurrer to the petition was sustained, and plaintiff appealed. Affirmed.

Harding, Murphy, Stinson & Tucker, of Kansas City, and Bailey & Hart, of Brookmeld, for appellant.

C. M. Kendrick of Marceline, for respondent.

TRIMBLE, P. J.

This is an action by a liability insurance company to recover a balance of $1,200 alleged to be due as premiums on two policies, one for insurance against public liability and the other for protection against employer's liability, issued in favor of the city of Marceline.

The city demurred to the petition, and the' court sustained it; whereupon plaintiff refused to plead further and appealed.

The petition did not allege any contract for insurance between plaintiff and the city such as is required by section 2164, R. S. 1919, which provides that—

"No * * * city * * * shall make any contract, * * * unless such contract [shall] be made upon a consideration wholly to be performed or executed subsequent to the making of the contract; and such contract, including the consideration, shall be in writing and dated when made, and shall be subscribed by the parties thereto, or their agents authorized by law and duly appointed and authorized in writing."

All that the petition alleged in this regard was that on December 16, 1918, at a meeting of the city council at which all but two of the members (naming them) were present, with "W. C. Arnold presiding," the following was passed and made a matter of record on the minute books and records of said council, as follows:

"Motion made by Councilman Wheeler, seconded by Councilman Newman and adopted, that the water and light committee be given power to look after employees and public liability insurance."

And that on or about the 10th of December, 1918, upon the application of the above-mentioned "water and light committee" (who they were and how they were appointed is nowhere shown), the plaintiff issued the policies sued on; that the policies were issued and delivered along about March 3, 1919, together with a bill for the advance or minimum premium amounting to $100 on one policy and $50 on the other; and that on March 3, 1919, the city council held its regular meeting, the mayor and all councilmen (naming them) being present, at which the following was passed "Bill for liability insurance for $150.00 approved and paid on this date." Also, that said policies were in force for one year, during which the plaintiff "paid out certain sums of money in connection with claims for damages for injuries against defendant," and that defendant is estopped to question the authority of its officers to enter into said contract, etc.

It will be observed that it appears on the face of the petition that the policies for the premiums on which this suit is brought were applied for and obtained by the "water and light committee" (whoever that was and however appointed), on the 10th of December, 1918, and the so-called "power to look after" the insurance, the contract relating to which is relied upon by plaintiff, was not...