Liebing v. Mutual Life Ins. Company

• Citation: 207 S.W. 230,276 Mo. 118
• Parties: MARY S. LIEBING v. MUTUAL LIFE INSURANCE COMPANY, Appellant
• Decision Date: 12 December 1918
• Court: United States State Supreme Court of Missouri

207 S.W. 230

276 Mo. 118

MARY S. LIEBING v. MUTUAL LIFE INSURANCE COMPANY, Appellant

Supreme Court of Missouri

December 12, 1918

Appeal from St. Louis City Circuit Court. -- Hon. Charles B. Davis Judge.

Reversed and remanded.

Fordyce Holliday & White for appellant; Frederick L. Allen of counsel.

(1) The court erred in overruling the objection to the introduction of any evidence and the demurrers to the evidence offered at the close of plaintiff's case and of the entire case; for this suit was based upon Sec. 7897, R. S. 1899, and said statute, if construed and applied so as to prevent the defendant from deducting the entire indebtedness on the policy from three-fourths of the net reserve, or so as to invalidate the loan agreement and pledge entered into between insured, plaintiff and defendant in this case, is unconstitutional and void in the following respects: (a) Because it denies to the defendant the equal protection of the laws guaranteed to it by the Fourteenth Amendment to the Constitution of the United States; (b) because it deprives the defendant of its liberty without due process of law as guaranteed to it by the Fourteenth Amendment to the Constitution of the United States; and (c) because it deprives the defendant of its property without due process of law as guaranteed to it by the Fourteenth Amendment to the Constitution of the United States. New York Life Ins. Co. v. Head, 234 U .S. 161, 165; New York Life Ins. Co v. Dodge, 38 S.Ct. 337; Allgeyer v. Louisiana, 165 U.S. 578; Scott v. McNeil, 154 U.S. 34; C., B. & Q. v. Chicago, 166 U.S. 226; Twining v. New Jersey, 211 U.S. 78; Brand v. Union Elev. R. Co., 238 U.S. 586. (2) The court erred in excluding evidence as to the laws of New York. The evidence showed that the loan agreement and pledge were made in New York and that the foreclosure took place there; defendant had pleaded these facts in its answer and had pleaded the laws of New York; therefore, to refuse to permit proof of these laws was to deny full faith and credit to the public acts, records and judicial proceedings of the State of New York, in violation of Section 1 of Article 4 of the Constitution of the United States. New York Life Ins. Co. v. Head, 234 U.S. 149; New York Life Ins. Co. v. Dodge, 38 S.Ct. 337; Hartford Life Ins. Co. v. Barber, 38 S.Ct. 54; Supreme Counsel of Royal Arcanum v. Green, 237 U.S. 531; Tennent v. Union Central Life, 133 Mo.App. 351; Ruane v. Manhattan Life Ins. Co., 194 Mo.App. 222; Chouteau v. Allen, 70 Mo. 329; Bush v. Block, 193 Mo.App. 709; Ins. Co. v. Bank, 160 Ky. 538; Milliken v. Pratt, 125 Mass. 374; Smoot v. Judd, 161 Mo. 673; Lange v. N. Y. Life, 254 Mo. 488; Hauck v. Sharpe, 83 Mo.App. 385; Tremain v. Dyott, 161 Mo.App. 217, 221; Combes v. Knowlson, 193 Mo.App. 554; Machine Co. v. Tomlin, 174 Mo.App. 512; Tennent v. Union Central, 133 Mo.App. 345; Miller v. Tiffany, 1 Wall. 298, 310; Scudder v. Union Bank, 91 U.S. 406; Pritchard v. Norton, 106 U.S. 124, 136; Liverpool Co. v. Phenix, 129 U.S. 397, 447; Coghlan v. Railroad, 142 U.S. 101, 109; London Assur. v. Companhia, 167 U.S. 149, 160; Pinney v. Nelson, 183 U.S. 144; Bedford v. Eastern B. & L., 181 U.S. 227, 242; Int. Harvester v. McAdam, 142 Wis. 114; N. Y. Life v. Scheuer, 73 So. 409; Stone v. Old Colony, 212 Mass. 459; Hibernia Bank v. Lacombe, 84 N.Y. 367; Fidelity v. Harris, 94 Texas, 25; Wheeler v. Business Men's Association, 247 Feb. 677. (3) The court erred in refusing to instruct that the defendant was entitled, under the Amendment of 1903, to deduct the entire indebtedness on this policy from three-fourths of the net reserve, and in so ruling denied to the defendant the equal protection of the laws and deprived defendant of its property without due process of law, in violation of Section 1 of the Fourteenth Amendment to the Constitution of the United States. Laws 1903, p. 208; Kaumerick v. Castleman, 21 Mo.App. 487; State v. Scheck, 238 Mo. 429; People v. State Board, 20 Colo. 220; Westerman v. Supreme Lodge, 196 Mo. 670; Rosenplanter v. Provident Sav. Life, 96 F. 721; Boswell v. Security Mutual, 119 A.D. 723.

James J. O'Donohoe for respondent.

(1) The policy and loan agreement in this case are Missouri contracts, and being Missouri contracts, the statutes then in force in Missouri entered into and became part thereof, as much so as if copied therein. Liebing v. Ins. Co., 269 Mo. 509; New York Life v. Dodge, 246 U.S. 357; Lukens v. Ins. Co., 269 Mo. 574; McKinney v Ins. Co., 270 Mo. 305; Cravens v. Ins. Co., 148 Mo. 583; Horton v. Ins. Co., 151 Mo. 604; Whittaker v. Ins. Co., 133 Mo.App. 664; New York Life v. Cravens, 178 U.S. 389; Equitable Life Assur. Soc. v. Clements, 140 U.S. 226; Iowa State Trav. Men's Assn. v. Ruge, 242 F. 762; Hicks v. Nat. Life, 60 F. 690; Nat. Union v. Marlow, 74 F. 775; Equitable Life Assur. Soc. v. Winning, 58 F. 541; Fletcher v. New York Life, 13 F. 526; Bailey v. Hope Ins. Co., 56 Me. 474; Stevens v. Raisin Fertilizer Co., 87 Md. 679; Expressman's Assn. v. Hurlock, 91 Md. 585. The loan agreement cannot affect the policy, for it is not a contract independent of it. Smith v. Ins. Co., 173 Mo. 329; Burridge v. Ins. Co., 211 Mo. 158; Christensen v. Ins. Co., 152 Mo.App. 551; Paschedag v. Ins. Co., 155 Mo.App. 185; Gillen v. Ins. Co. 178 Mo.App. 89; Mun v. Ins. Co., 181 S.W. (Mo. App.) 606; Crowe v. Ins. Co., 190 S.W. (Mo. App.) 960; McCall v. Ins. Co., 196 Mo.App. 318; McKinney v. Ins. Co., 270 Mo. 305; Dannehauser v. Wallenstein, 169 N.Y. 199; McDonnell v. Ins. Co., 85 Ala. 412; Merritt v. Ins. Co., 55 Ga. 103; Symonds v. Ins. Co., 23 N.H. 27. The loan agreement is a personal obligation of the parties who signed it, namely, the insured and plaintiff. Equitable Life v. De Lisle, 182 S.W. (Mo. App.) 1026; Gillen v. Ins. Co., 178 Mo.App. 89. Besides, the policy stipulates: "That in any settlement of this contract all outstanding indebtedness hereon to the company must be paid." But if the loan agreement is a contract independent of the policy, then the law of Missouri is applicatory, for reasons, among others, that the policy was delivered as a pledge to the defendant in Missouri, and in pledge contracts the law of the place of delivery of the thing pledged or the owner's domicile controls. Hervey v. R. I. Locomotive Works, 93 U.S. 664; Loftus v. F. & M. N. Bank, 133 Pa. St. 97; 1 Wharton, Conf. Laws (3 Ed.), sec. 297, et seq.; Story, Conf. Laws (8 Ed.), sec. 383 et seq. Contracts of insurance or loan agreements made by a New York company in another state are not subject to the New York laws unless the policies or loan agreements so provide; and neither so provided in this case. Mutual Life v. Cohen, 179 U.S. 262; Mutual Life v. Hill, 193 U.S. 551; Metropolitan Life v. Bradley, 98 Tex. 230. The fact that the loan was payable in New York did not make the loan agreement a New York contract. Liverpool & Great Western Steam Company v. Ins. Co., 129 U.S. 397. The law of the place of performance always yields to the lex fori and lex loci contractus. And even if the loan agreement was accepted in New York, notice of acceptance and payment of part of the proceeds of the loan by the defendant's Missouri agent to the insured were conditions precedent, and, hence, made the loan agreement a Missouri contract. There was part performance in Missouri, namely, the payment of part of the loan to the insured by defendant. Crohn v. U. C. T., 170 Mo.App. 273; Perry v. Ins. Co., 67 N.H. 291; Heiman v. Ins. Co. 17 Minn. 153; Markey v. Ins. Co., 126 Mass. 158; Scudder v. Union Nat. Bank, 91 U.S. 406; Union Bank v. Chapman, 169 N.Y. 543. (2) Even if the New York laws were applicable at the beginning, they cannot now be invoked, for no new issues can be made nor new defenses asserted after the case comes down for retrial. "If a case is to be tried by piecemeal the end of a lawsuit would never be reached. At the trial of the case all issues and defenses should be brought forward." McLure v. Bank, 263 Mo. 128; Lilly v. Menk, 143 Mo. 137; Rasch v. Ins. Co., 201 S.W. (Mo. App.) 919; Shearlock v. Ins. Co., 193 Mo.App. 430; Bange v. Legion of Honor, 153 Mo.App. 154; Carp v. Ins. Co., 116 Mo.App. 528; Livery Co. v. Railroad, 113 Mo.App. 144; Johnson v. Blell, 61 Mo.App. 46; Singer Mfg. Co. v. Givens, 35 Mo.App. 608. The same rule obtains in sister states. In re Estate of Cook, 143 Iowa 733; Mantle v. Dabney, 47 Wash. 394; Barrett v. McAllister, 35 W.Va. 116, 117; Williams v. Banks, 19 Md. 36; Bassett v. Shepardson, 57 Mich. 428; City of Louisville v. Muldoon, 20 Ky. Law Rep. 1576; Sears' Exr. v. Marshall, 83 Va. 383; State v. Board of County Commrs., 60 Neb. 570; Murphy v. Plankington Bank, 20 S.D. 178; Gillespie v. Fulton Oil Co., 244 Ill. 14; Ebelhar v. German-American Security Co.'s Assignee, 119 S.W. (Ky. C. of A.) 220; Wood v. Kerkeslager, 227 Pa. 536; Brewster v. Meng, 76 Neb. 560; Hook v. Richeson et al., 115 Ill. 445; Butler v. Thompson, 52 W.Va. 311; McAllister v. Clark, 33 Conn. 252; Continental Casualty Co. v. Semple, 112 S.W. (Ky. C. of A.) 1122; In re Quaker Realty Co., 127 La. 207. The rule is the same in cases of involuntary nonsuit. Bange v. Legion of Honor, 153 Mo.App. 168; Moore v. Nat. Acc. Soc., 49 Wash. 312; Strehlau v. Lumber Co., 152 Wis. 589; Cartin v. Railroad, 43 S.C. 221; Elder v. Railroad, 26 Idaho 209, cases cited, including Lilly v. Menke, 143 Mo. 137, and Peery v. Railroad, 122 Mo.App. 177. Before this case went to trial the first time, the defense founded on the laws of New York was open to defendant within the legitimate scope of the pleadings. It is now too late to invoke that defense, for all "questions which were raised or could have been raised [on the first trial] are now res adjudicata." Castleman v. Buckner, 202 S.W. (Ky. App.) 681; McKinney v. State, 117 Ind. 26. The defendant in...