Kellogg v. National Protective Ins. Co.

• Decision Date: 06 October 1941
• Docket Number: No. 20001.,20001.
• Parties: ELLA R. KELLOGG, APPELLANT, v. NATIONAL PROTECTIVE INSURANCE COMPANY, A CORPORATION, RESPONDENT.
• Court: Missouri Court of Appeals

155 S.W.2d 512

ELLA R. KELLOGG, APPELLANT, v. NATIONAL PROTECTIVE INSURANCE COMPANY, A CORPORATION, RESPONDENT.

No. 20001.

Kansas City Court of Appeals, Missouri.

October 6, 1941.

Appeal from Circuit Court of Jackson County. — Hon. Thos. J. Seehorn, Judge.

AFFIRMED.

Louis A. Laughlin for appellant.

(1) Nature and extent of the police power. Manigault v. Springs, 199 U.S. 473, 480; Prigg v. Pennsylvania, 16 Pet. 539, 625; Leisy v. Hardin, 135 U.S. 100, 128; Southwest Mo. R.R. Co. v. Pub. Serv. Comm., 281 Mo. 52, 59; Union Cemetery Ass'n v. Kansas City, 252 Mo. 466, 504. (2) The control and regulation of insurance companies by the State in an exercise of the police power. German Alliance Ins. Co. v. Hale, 219 U.S. 307, 317; German Alliance Ins. Co. v. Kansas, 233 U.S. 389; Merchants Liability Co. v. Smart, 267 U.S. 126; Paul v. Virginia, 8 Wall. 168. (3) The statutes and judicial decisions of Kansas must be followed by both State and Federal courts in matters falling within the jurisdiction of that State. Chicago, etc. R. Co. v. Wiggins Ferry Co., 119 U.S. 622; Davis v. Davis, 305 U.S. 32; Erie R.R. Co. v. Tompkins, 304 U.S. 64; New York Life Ins. Co. v. Jackson, 304 U.S. 261; Rosenthal v. N.Y. Life Ins. Co., 304 U.S. 263; Roy v. Kansas City, 204 Mo. App. 332; Orthwein v. Germania Life Ins. Co., 261 Mo. 650; Madden v. Mo. Pac. Ry., 167 Mo. App. 143; Ferhenbach W. & L. Co. v. Ry., 182 Mo. App. 1. (4) The Kansas Statute requiring the printing of exceptions in bold face type is a proper exercise of the police power. Sec. 40-1109, G.S. of Kansas; Stewart v. Mutual B.H. & A. Assn., 135 Kan. 138; Williams v. Travelers Ins. Co., 168 Wis. 456, 169 N.W. 609; Mutual Life Ins. Co. v. Schenkat, 62 Fed. (2d) 236; Van Dusen v. Interstate B.M.A., 237 Mich. 294; Porter v. Continental Casualty Co., 277 Ill. App. 492. (5) The State of Kansas had jurisdiction of the insurance contracts sued on because of the presence of both parties to the contract in the State when they were entered into. (a) Defendant was doing business in Kansas. Secs. 40, 214, G.S. of Kansas; John Deere Plow Co. v. Wyland, 69 Kan. 255; Alabama (Sec. 232); Nelms v. E.A.L.M. Co., 92 Ala. 157; Farrior v. N.E. Mtg. Sec. Co., 88 Ala, 275; Mullens v. Mtg. Co., 88 Ala. 280; Dundee Mtg. Co. v. Nixon, 95 Ala. 318; Guin v. N.E. Mtg. Sec. Co., 92 Ala. 135; State v. Bristol Bank, 108 Ala. 3; Chattanooga Building, etc., Ass'n. v. Denson, 189 U.S. 408; Limbaugh v. Monarch Life Ins. Co., 84 S.W. (2d) 208. (b) Defendant being a foreign corporation could do no act toward transacting its business in Kansas except in compliance with its laws. Nutting v. Massachusetts, 183 U.S. 553; Daggs v. Ins. Co., 136 Mo. 382, 391; U.S. Supreme Court, 172 U.S. 557; Burridge v. Ins. Co., 211 Mo. 158, 180; Head v. Ins. Co., 241 Mo. 403, 413; Couch Cyc. of Ins., sec. 245; Daggs v. Orient Ins. Co., 136 Mo. 382; Cravens v. Ins. Co., 148 Mo. 583; Lukens v. Ins. Co., 269 Mo. 574; McKinney v. Ins. Co., 270 Mo. 305; Orient Ins. Co. v. Daggs, 172 U.S. 557; Lange v. Ins. Co., 254 Mo. 488, 503; Saunders v. Life Ins. Co., 212 Mo. App. 186; Pietri v. Seguenot, 96 Mo. App. 258, 265; Price v. Ins. Co., 48 Mo. App. 294; Summers v. Fed. Mut. Aid Assn., 84 Mo. App. 605, 611; Moore v. Ins. Co., 112 Mo. App. 696, 762; Roleson v. Grand Lodge, 229 Mo. App. 775, 84 S.W. 651; Haven v. Ins. Co., 149 Mo. App. 291; Leavenworth v. Booth, 15 Kan. 627; State v. Phipps, 50 Kan. 609; State v. Stone, 118 Mo. 388; Holmes v. Ins. Co., 131 Mass. 64; Thomas Canning Co. v. Canners Exch., 219 Mich. 214, 189 N.W. (2d) 214; Old Wayne Life Assn. v. McDonough, 204 U.S. 8; New York Life Ins. Co. v. Cravens, 178 U.S. 389, 401. (6) Even though it be conceded that defendant was not present in Kansas when the contracts were entered into and accepted the contracts in Missouri yet the State of Kansas had jurisdiction over the contracts. Allgeyer v. Louisiana, 165 U.S. 578; Harper v. California, 155 U.S. 648; Alaska Packers Assn. v. Comm'n, 294 U.S. 532, 540; Bothwell v. Buckbee Mears Co., 166 Minn. 288; Bothwell v. Buckbee Mears Co., 275 U.S. 274; Pennsylvania Mut. F. Ins. Co. v. Meyer, 197 U.S. 407, 416. (7) The last act necessary to complete the contracts was the delivery of the policies in Kansas. Mutual Life Ins. Co. v. Johnson, 293 U.S. 335. (8) The decision of the Kansas City Court of Appeals in Fields v. Equitable Life Assur. Soc., 118 S.W. (2d) 521, is erroneous. Lange v. Ins. Co., 254 Mo. 488, 503; Head v. Ins. Co., 241 Mo. 403, 413; Liebing v. Ins. Co., 276 Mo. 118; Illinois Fuel Co. v. Mobile & O.R.C., 319 Mo. 899; N.Y. Life Ins. Co. v. Dodge, 246 U.S. 357, 373; Fletcher v. N.Y. Life Ins. Co., 13 Fed. 526; Berry v. Knights Templars & Masons Life Indem. Co., 46 Fed. 439.

James P. Aylward, George V. Aylward and Terence M. O'Brien for respondent.

(1) Appellant makes no assignment of errors and her points and authorities are insufficient to preserve any point for review. Young v. Wheelock, 333 Mo. 992, 1006, 64 S.W. (2d) 950, 956; Hartkopf v. Elliott, 339 Mo. 1009, 1013, 99 S.W. (2d) 25, 27; Frick v. Millers' Nat. Ins. Co., 279 Mo. 156, 158, 213 S.W. 854, 855; Aulgur v. Strodtman, 329 Mo. 738, 742, 46 S.W. (2d) 172, 173; Majors v. Malone, 339 Mo. 1061, 1065, 93 S.W. (2d) 914, 916; Campbell v. Campbell, 323 Mo. 1149, 1156, 20 S.W. (2d) 655, 657; Willard v. Robertson (Mo.), 129 S.W. (2d) 911, 913; Jeck v. O'Meara, 323 Mo. 559, 575, 122 S.W. (2d) 897, 905; Christine v. Luyties, 280 Mo. 416, 431, 217 S.W. 55, 60; Hunt v. Hunt, 307 Mo. 375, 391, 270 S.W. 365, 369; Barnett v. Hastain (Mo.), 256 S.W. 750, 753; Young v. Wheelock, supra; this court's Rule (15). (2) The judgment below was correct. The last act necessary to put the policies in force occurred in Missouri, and so the policies must be governed by the law of Missouri. Liebing v. Mutual Life Insurance Co., 276 Mo. 118, 134, 207 S.W. 230, 232; Ruhe v. Buck, 124 Mo. 178, 183, 27 S.W. 412; Daggett v. Kansas City Structural Steel Co., 334 Mo. 207, 214, 65 S.W. (2d) 1036, 1039; Illinois Fuel Co. v. Mobile & Ohio R. Co., 319 Mo. 891, 913, 8 S.W. (2d) 834, 838; Yeats v. Dodson (Mo.), 127 S.W. (2d) 652, 656; Prentiss v. Illinois Life Insurance Co. (Mo.), 225 S.W. 695, 702; Adams v. Continental Life Insurance Co., 340 Mo. 417, 433, 101 S.W. (2d) 75, 83; Ruhe v. Buck, 124 Mo. 178, 183, 27 S.W. 412; Liebing v. Mutual Life Insurance Co., 276 Mo. 118, 134, 207 S.W. 230, 232; Fields v. Equitable Life Assurance Society (Mo. App.), 118 S.W. (2d) 521, 524; Pickett v. Equitable Life Assurance Society (Mo. App.), 27 S.W. (2d) 452, 454; Toon v. Evans Coffee Co. (Mo. App.), 103 S.W. (2d) 535, 537; Cravens v. New York Life Insurance Co., 148 Mo. 588, 600, 604; Lange v. Insurance Co., 254 Mo. 488, 503; Head v. Insurance Co., 241 Mo. 403, 413.

CAVE, J.

Appellant sued in the Jackson County Circuit Court on two policies of accident and life insurance issued by respondent to her husband, who, during the life of both policies, was killed in an automobile accident. In one, the appellant was the beneficiary, and the amount claimed therein in the suit below was $1500. The other was payable to the estate of the insured, and the amount claimed therein was $500. In the trial below, there was no dispute about the policies being in effect at the date of the death of insured and no dispute about proof of death being made.

The appellant and her husband resided in the State of Kansas at all times here involved, and he was killed in an automobile accident in that State on April 24, 1938. The probate court in Kansas ordered his executrix to assign the latter policy to her as her statutory widow's allowance, which was done, and she sues on both policies in her own name.

The respondent is a Missouri corporation, with its chief office in Kansas City, Missouri. The deceased ordered the policies, they were sent to him from the home office, and he paid the premiums thereon, all by mail.

The appellant contends the policies are to be construed and enforced under the laws of Kansas, and she pleaded in her petition certain Kansas statutes and decisions which forbid provisions in such policies reducing the liability below the face amount unless printed in bold type of greater prominence than the rest of the text; and made such policies valid as if the forbidden provisions did not appear therein. Other allegations in the petition set out certain Kansas statutes and decisions under which appellant claimed respondent had transacted business in the State of Kansas in issuing, delivering and collecting premiums on said policies, and in adjusting the same.

The respondent's answer denied it had transacted this or any other business in the State of Kansas, and pleaded certain clauses of the respective policies, reducing liability below the face amount after the insured had reached certain specified ages. These were not printed in large type, as required by the Kansas statute. The deceased had passed those ages when he died. Respondent admitted liability for the reduced amounts and tendered such amounts into court. The appellant did not file a reply. The case was tried to the court without a jury; respondent's theory was adopted, and judgment went for respondent in view of said tenders.

At the close of the evidence, appellant had requested certain declarations of law applying the aforesaid Kansas statutes to the case and stating that any contrary course would violate Article IV, Section I of the Constitution of the United States, by denying full faith and credit to the statutes and decisions of a sister State. These declarations were refused. Motion for new trial was overruled and appellant filed application and prayed for appeal to the Supreme Court of Missouri because of the constitutional question involved, and the appeal was so granted. That court held that there was no constitutional question involved, and certified the cause to this court.

The case being stripped of any constitutional question leaves but one question...