O'Malley v. Prudential Cas. & Sur. Co.

• Decision Date: 02 April 1935
• Parties: R. EMMET O'MALLEY, SUPERINTENDENT OF THE INSURANCE DEPARTMENT OF THE STATE OF MISSOURI, APPELLANT, v. PRUDENTIAL CASUALTY & SURETY COMPANY, A CORPORATION, DEFENDANT, WILMER L. MUELLER, EXCEPTOR, RESPONDENT
• Court: Missouri Court of Appeals

80 S.W.2d 896

230 Mo.App. 935

R. EMMET O'MALLEY, SUPERINTENDENT OF THE INSURANCE DEPARTMENT OF THE STATE OF MISSOURI, APPELLANT, v. PRUDENTIAL CASUALTY & SURETY COMPANY, A CORPORATION, DEFENDANT, WILMER L. MUELLER, EXCEPTOR, RESPONDENT

Court of Appeals of Missouri, St. Louis

April 2, 1935

Appeal from Circuit Court of the City of St. Louis.--Hon. M. G Baron, Judge.

REVERSED AND REMANDED (with directions).

Powell B. McHaney and Green, Henry & Remmers for appellant.

(1) Chapter 37, Revised Statutes of Missouri, 1929, being the insurance statutes, creates the duties and powers of the Superintendent of the Insurance Department; provides the manner in which insurance companies may be operated; the means by which the Superintendent of the Insurance Department may take charge of an insolvent insurance company; the company liquidated and the assets distributed, under section 5951. This chapter and the various provisions therein apply exclusively to the issues herein presented. The whole insurance code indicates the intention to regulate the business from beginning to end. State ex rel. Missouri State Life Ins. Co. v. Hall, Judge, 52 S.W.2d 174, l. c 177; State ex rel. Hyde v. Falkenhainer, Judge, 309 Mo. 381, l. c. 396, 274 S.W. 722; Carr, Superintendent v. Union Mutual Fire Ins. Co., 33 Mo.App. 291. (2) Where two acts apparently include the same subjectmatter, the courts under the general rule of construction look unkindly upon repeals by implication. A later statute should not be held to amend or repeal an earlier one if both can be given effect without affront to reason, and the Legislature is competent, in making rules providing methods for distributing assets of insolvent general business corporations and insolvent insurance companies, to make a different rule of distribution for each class. Carr, Superintendent, v Union Mutual Fire Ins. Co., 33 Mo.App. 291, l. c. 292; Folk v. City of St. Louis, 250 Mo. 116; Hurlburt v. Bush, 284 Mo. 397, l. c. 405; Hawkins v. Smith, 242 Mo. 688.

Wilmer L. Mueller, pro se, respondent.

BECKER, J. Hostetter, P. J., and McCullen, J., concur.

OPINION

BECKER, J.

This is an appeal by R. E. O'Malley, as Superintendent of the Insurance Department of the State of Missouri, from the judgment of the Circuit Court of the City of St. Louis, sustaining the exceptions of one Wilmer L. Mueller, a claimant for wages due him as a former employee of defendant, Prudential Casualty & Surety Company, to the report of the commissioner duly appointed by the circuit court to hear and determine claims against said company, which is now in process of liquidation pursuant to the provisions of section 5951 et seq., Revised Statutes of Missouri, 1929 (Mo. St. Ann., sec. 5951 et seq., p. 4530).

The decree of insolvency was issued by the court on December 26, 1931, upon a petition filed by the superintendent of the insurance department, and in due course notice was given to creditors to present their claims before the commissioner appointed by the court to hear and determine the same.

On February 8, 1932, Mueller's claim was filed, the same being for the sum of $ 183.33, and representing salary or wages due him from the company for the period from December 1, 1931, to December 22, 1931.

Thereafter, on November 4, 1932, the commissioner filed his report setting forth the allowed, the disallowed, and the unliquidated claims against the company, in the course of which it appeared that Mueller's claim had been allowed and classified as a fourth-class claim under section 5951, Revised Statutes of Missouri, 1929 (Mo. St. Ann., sec. 5951, p. 4336), which the commissioner regarded as the controlling statute. In due course Mueller filed his exceptions to said report, setting up that inasmuch as the entire amount of his claim was for salary or wages due him as an employee of the company, it should have been allowed him in full by the commissioner as a preferred claim against the company, and praying an order of court directing the commissioner to allow his claim as a preferred one.

Thereafter the matter came on for a hearing before the court upon said exceptions, whereupon the court in part sustained the exceptions, ordering that the claim to the extent of $ 100 be allowed as a preferred claim under section 1168, Revised Statutes of Missouri, 1929 (Mo. St. Ann., sec. 1168, p. 1429), a general statute giving a preferred status to debts owing to laborers or servants which have accrued by reason of their labor or employment, and that the balance of $ 83.33 remain classified as a fourth-class claim. It may be noted here that the fact that the claim was allowed a preferential status only to the extent of $ 100 was for the reason that section 1168, supra, provides for according a preference to wage claims only to that limit.

From the judgment of the court so entered the superintendent of the insurance department in due course appeals.

The only question presented by the appeal is whether a claim for salary or wages by a former employee of an insurance company, which has been declared insolvent by the circuit court and placed in the hands of the Superintendent of the Insurance Department for liquidation, is to be classified as a preferred claim under section 1168, supra, as was the judgment of the lower court in this case, or as a fourth-class claim under section 5951, supra, as the Insurance Department contends.

Section 5951 first appears in the 1879 revision of the statutes, and section 1168 in the 1889 revision. The former section is a part of the general provisions of the statutes relating to insurance companies, while the latter section is a general labor claims statute and is made a part of the article and chapter having to do with executions and exemptions.

In the main, section 5951 follows the commonly accepted doctrine as to the priority of...