Massachusetts Bonding & Ins. Co. v. Chorn
Decision Date | 04 March 1918 |
Docket Number | No. 20385.,20385. |
Citation | 274 Mo. 15,201 S.W. 1122 |
Court | Missouri Supreme Court |
Parties | MASSACHUSETTS BONDING & INS. CO. v. CHORN, State Ins. Superintendent. |
Appeal from Circuit Court, Cole County; J. G. Slate, Judge.
Suit for injunction by the Massachusetts Bonding & Insurance Company against Walter K. Chorn, as Superintendent of Insurance for the State of Missouri. Prom an order sustaining a demurrer dismissing the amended petition, plaintiff appeals. Affirmed.
This was instituted by petition for injunction filed in the Cole county circuit court April 30, 1917. A preliminary restraining order was granted on the same day. On the first day of the following June term the defendant appeared and demurred generally to the petition. On the fifth day of the same term the plaintiff filed an amended petition in words and figures (omitting caption and signatures) following:
The demurrer previously filed was on the same day taken up, and, being treated as applicable to the amended petition, was sustained, and, the plaintiff declining to plead further, final judgment was entered dismissing its petition, from which this appeal was duly taken.
Harding, Deatherage, Murphy & Harris, of Kansas City, for appellant. Frank W. McAllister, Atty. Gen., and John T. Gose, Asst. Atty. Gen., for respondent.
BROWN, C. (after stating the facts as above).
As will be seen from the foregoing statement, the object of this suit is to enjoin the defendant, in his capacity of insurance commissioner of this state, from suspending the plaintiff, a corporation of the state of Massachusetts, from the further transaction of its business in this state as a foreign insurance company, until it shall have paid the full sum of $3,907.68 demanded of it as tax assessed upon premiums received in this state, or upon business done in this state, under the provisions of section 7099 of the Revised Statutes of Missouri, 1909.
The petition states, in substance, that during the year ending December 31, 1916, plaintiff issued a great number of contracts of insurance in the state "consisting of policies of indemnity, known as liability policies, health and accident policies, surety bonds, and so forth," the premiums received on all of which amounted to $195,384.61, as construed by defendant, while in fact it did not receive that amount, because out of the said amount of premiums so received it returned to applicants for its contracts of insurance the sum of $23,504.11 on account of policies and bonds not taken, or canceled during said year, and paid to other insurance companies lawfully transacting business in this state the further sum of $23,096.85 for reinsurance on policies and bonds on which it had received premiums included in said amount on which the tax was charged, so that it had actually received on business done in the state during that year the sum of $148,783.65, which included premiums received from other companies authorized to transact business in this state for insurance written for them by plaintiff. On this sum the plaintiff offers to pay the 2 per cent. tax imposed by the section cited.
The exactions complained of are, it will be observed, divided into two classes only: (1) The tax on premiums returned to the insured on policies undelivered or canceled; and (2) the tax on premiums expended for reinsurance by plaintiff on the same risks in other companies doing business in the state. It is perhaps intimated, but not stated, in the petition that the first of these includes three subclasses: (1) Premiums collected on contracts issued and returned and the premiums refunded; (2) premiums collected and returned on policies cancelled by plaintiff, at its own instance; and (3) premiums collected and returned on policies canceled at the instance of the insured under the terms of such policies. There is nothing, however, in the terms of the petition which indicates the amount of the returned premiums, if any, belonging to any one of these three subclasses. Its theory seems to be that all premiums received and returned to the insured, either by reason of the nondelivery of the policies for which they had been paid or on account...
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