Klaber v. O'Malley
| Decision Date | 18 December 1935 |
| Docket Number | 34125 |
| Parties | KLABER v. O'MALLEY, Superintendent ofInsurance |
| Court | Missouri Supreme Court |
Rehearing Denied January 11, 1936.
James P. Aylward and McAllister, Humphrey, Pew & Broaddus, all of Kansas City, for appellant.
Julius C. Shapiro, of Kansas City, for respondent.
BRADLEY, Commissioner.
This is an action by the administrator of the estate of John Albert Kinnear, deceased, on a policy of accident insurance for $ 1,200 issued by the Missouri State Life Insurance Company to plaintiff's intestate. Insured was a member of the Automobile Club of Missouri and the policy recites that he was insured as such member. A jury was waived and the cause tried before the court, resulting in a finding and judgment in favor of plaintiff for the amount of the policy and for interest, penalty, and attorneys' fee. Motion for new trial was overruled, and defendant appealed. The appeal was to the Kansas City Court of Appeals, but was, by that court transferred here on the theory that a state officer is a party in his official capacity so as to make appellate jurisdiction in the Supreme Court. Constitution, art. 6, § 12.
The policy was issued April 12, 1932. The insured was killed in an automobile accident near Grain Valley, Mo., on June 10, 1932. The suit was originally filed against the Missouri State Life Insurance Company, hereinafter called the company, but before the cause was terminated, the company was dissolved as a corporation in proceedings by the superintendent of insurance under section 5939, R.S. 1929, Mo. St.Ann. § 5939, p. 4528, and other pertinent provisions of article 10, c. 37, R.S.1929 (section 5892 et seq.), and the defendant, superintendent of insurance, became vested by said court proceedings and by operation of law with the assets of the company. Thereafter, the superintendent of insurance was substituted as the party defendant.
In informal conference a question of our jurisdiction arose. It does not follow, as of course, that when a state officer is a party in any capacity that jurisdiction is in the Supreme Court. Our jurisdiction is not challenged by either party, but it is our duty to determine that question. State ex rel. Rucker v. Hoffman, 313 Mo. 667, 288 S.W. 16; Bennett v. Bennett (Mo.Sup.) 243 S.W. 769; In re Letcher, 269 Mo. 140, loc. cit. 147, 190 S.W. 19. Under the Constitution, section 12, art. 6, and Amendment of section 12 by section 5, Amendment of 1884, where a state officer is a party in the constitutional sense, appellate jurisdiction is in the Supreme Court. In the instant case, the defendant is a state officer, but in order for jurisdiction to be in the Supreme Court on the ground that a state officer is a party, such officer must be a real party in his official capacity, in order to be a party within the meaning of the Constitution. State ex rel. Holmes v. Dillon, 90 Mo. 229, 2 S.W. 417, 420; Bank of Darlington v. Atwood, 325 Mo. 123, 27 S.W.2d 1029, 1030; State ex rel. Becker v. Farmers' Exchange Bank et al., 331 Mo. 689, 56 S.W.2d 129, 130; City of Doniphan v. Cantley, 330 Mo. 639, 50 S.W.2d 658; State ex rel. Lentine v. State Board of Health, 334 Mo. 220, 65 S.W.2d 943; Consoldated School District No. 2 of Clinton County v. Gower Bank et al. (Mo. Sup.) 53 S.W.2d 280; Butler et al. v. Board of Education of Consolidated School District et al. (Mo.Sup.) 16 S.W.2d 44.
In State ex rel. Holmes v. Dillon, supra, the question was whether a sheriff was a state officer within the meaning of section 12, article 6 of the Constitution. It was held that a sheriff is not such officer, and Judge Norton, speaking for the court, said: 'I think it is only where the officer, as such, brings suit, or when he is sued as such officer; and the phrase in the constitution should be so construed as to include only that class of cases where the officer, by reason of his official character, sues or is sued.'
Bank of Darlington v. Atwood, supra, was an action commenced in the name of the Bank of Darlington by the state finance commissioner in charge of the failed bank to recover for an alleged overdraft. See Bank of Darlington v. Atwood, 225 Mo.App. 974, 36 S.W.2d 429, 47 S.W.2d 1097. The appeal from the trial court was to the Kansas City Court of Appeals, and that court transferred the cause here on the theory that a state officer was a party within the constitutional sense. This court, En Banc, held that the state finance commissioner was not a real party, but that the Bank of Darlington was the party plaintiff, and that the commissioner was not a party 'in the constitutional sense.' The opinion rules that:
State ex rel. Becker v. Farmers' Exchange Bank et al., supra, was an action by the secretary of state against the failed bank and the state finance commissioner to have allowed a claim as preferred. The claim was based on a deposit in the bank derived from the sale of automobile licenses. The appeal went to the Kansas City Court of Appeals and was by that court transferred here on the theory that a state officer was a party in a constitutional sense, but the Court of Appeals did not designate 'whether it referred to the secretary of state or the state commissioner of finance.' The opinion by this court again ruled that 'in proceedings of this character the relation of the commissioner of finance to the controversy does not give this court appellate jurisdiction,' citing Bank of Darlington v. Atwood, City of Doniphan v. Cantley and Consolidated School District No. 2 of Clinton County v. Gower Bank et al., supra, but held that jurisdiction was here 'because a state officer, the secretary of state in his official capacity, is a party to the proceeding.'
Butler et al. v. Board of Education of Consolidated School District et al., supra, was to enjoin the issuance by the district, the registration by the state auditor, and the sale of $ 40,000 in bonds voted by the district. On the question of jurisdiction it was held by this court, En Banc, that jurisdiction was here because of the amount involved, and because of a constitutional question raised, and because a state officer (the state auditor) was 'a party litigant' in his official capacity.
In State ex rel. Gehrs et al. v. Public Service Commission et al. (Mo.Sup.) 90 S.W.2d 390, and State ex rel. Pitcairn et al. v. Public Service Commission (Mo. Sup.) 90 S.W.2d 392, we held that appeals from rulings of the circuit court on orders of the public service commission do not lie to the Supreme Court on the ground that a state officer is a party, and these cases were transferred to the Kansas City Court of Appeals.
State ex rel. State Highway Commission v. Day et al., 327 Mo. 122, 35 S.W.2d 37, 38, was en Banc and the action was to condemn land for right of way and drainage purposes. The appeal was to this court and a question of jurisdiction arose. It was contended by both parties that jurisdiction was here because title to real estate was involved and because a state officer was a party. We are not concerned in the present case with the question of title to real estate, but we might say in passing that it was held that title was not directly involved. On the question as to whether a state officer was a party, the court said: citing State ex rel. State Highway Commission v. Bates, 317 Mo. 696, 296 S.W. 418. The ruling was that the state highway commission was 'not a state officer,' and the cause was transferred to the St. Louis Court of Appeals. 47 S.W.2d 147.
In the cause at bar, is the defendant, O'Malley, superintendent of the insurance department of the state, a real party in his official capacity? That such superintendent is a state officer whose duties and functions are state-wide in their scope must be conceded. The final result in the instant cause will, to some extent, affect every policyholder and creditor of the company. State ex rel. Waddill v. Smith et al., 131 Mo. 176, 33 S.W. 11, 12, was an original proceeding, in mandamus in this court, against the judges of the Kansas City Court of Appeals to compel transfer of a cause to this court. The facts giving rise to the mandamus case are as follows: Lillian N. Hannum obtained judgment for $ 1,070.08 in the circuit court of Linn county against the National Temperance Relief Union, an insurance company. The defendant appealed to the Kansas City Court of Appeals. While the appeal was pending, proceedings were instituted under the statute by the superintendent of insurance in the circuit court of Buchanan county, by which proceedings the insurance company was adjudged insolvent, dissolved as a corporation and the title to its assets vested in the superintendent of insurance with directions 'to wind up its affairs.' Thereafter, the plaintiff in the insurance case filed motion in the Kansas City Court of Appeals to affirm the...
To continue reading
Request your trial