Order of United Commercial Travelers v. Meinsen

• Decision Date: 14 November 1942
• Docket Number: No. 12260.,12260.
• Parties: ORDER OF UNITED COMMERCIAL TRAVELERS OF AMERICA v. MEINSEN et al.
• Court: U.S. Court of Appeals — Eighth Circuit

131 F.2d 176 (1942)

ORDER OF UNITED COMMERCIAL TRAVELERS OF AMERICA v. MEINSEN et al.

No. 12260.

Circuit Court of Appeals, Eighth Circuit.

October 28, 1942.

Rehearing Denied November 14, 1942.

Carson E. Cowherd, of Kansas City, Mo. (John B. Gage, of Kansas City, Mo., E. W. Dillon, of Columbus, Ohio, and Gage, Hillix, Hodges & Cowherd, of Kansas City, Mo., on the brief), for appellant.

Roscoe C. Van Valkenburgh, of Kansas City, Mo. (Arthur Miller, Alton Gumbiner, David L. Sheffrey, and Miller, Gumbiner Sheffrey & Van Valkenburgh, all of Kansas City, Mo., on the brief), for appellees.

Before SANBORN, THOMAS, and JOHNSEN, Circuit Judges.

THOMAS, Circuit Judge.

This is an appeal from a judgment in favor of appellees as beneficiaries named in an accident benefit certificate issued by appellant to Christian W. Meinsen of Higginsville, Missouri.

Reversal is sought upon two grounds, namely, (1) that the death of the insured resulted from murder and was not covered by the contract; and (2) that the action was barred by an express limitation in the contract.

The material facts are not in dispute. The appellant is a fraternal beneficiary association incorporated under the laws of Ohio, with its principal office at the city of Columbus. At all times material to this case appellant was authorized to transact business in the state of Missouri, subject to the provisions of the fraternal beneficiary laws of that state.

The certificate was issued by appellant February 11, 1931. The insured was killed at Independence, Missouri, June 3, 1939, by Daniel B. Squires while Squires was attempting to rob the insured's companion. Appellees' claim for benefits under the certificate was disallowed by appellant on July 17, 1939, and the appellees were so notified by letter dated July 19, 1939. This suit was instituted by appellees in the state court of Missouri on April 5, 1941, and removed to the federal court by appellant on the ground of diversity of citizenship.

The certificate issued to the insured made the constitution, by-laws, articles of incorporation of appellant, and the application for insurance all a part of the contract. The certificate provided benefits "for death due to accidental means alone, and independent of all other causes. * * *" The by-laws provided: "This Order shall not be liable to any person for any benefit for any death * * * resulting from * * * murder. * * *"

Under the first defense the issue was whether the death of the insured was accidental or the result of murder. The case was tried to the court without a jury, and the court upon this issue found that Meinsen, the insured, met his death at Independence, Missouri, "solely and independently of all other causes, from the unintentional, accidental discharge of a revolver in the hand of another. * * *" Whether this finding is clearly erroneous or not depends upon the construction of the word "murder" as used in the contract, which in turn depends upon whether the contract is an Ohio contract to be construed under the laws of Ohio or a Missouri contract to be construed under the laws of Missouri.

In Missouri, as at common law, an unintentional homicide is murder if committed in the perpetration of a felony. The statute (§ 4376, R.S.Mo.1939, Mo. R.S.A. § 4376) reads, "Every homicide * * * committed in the perpetration or attempt to perpetrate any * * * robbery or other felony shall be deemed murder." State v. Glover, 330 Mo. 709, 50 S.W.2d 1049, 1050, 1052, 87 A.L.R. 400; State v. Meadows, 330 Mo. 1020, 51 S.W. 2d 1033, 1037.

In Ohio § 12400 of the General Code provides that "Whoever, purposely, * * * or in perpetrating or attempting to perpetrate * * * robbery * * * kills another is guilty of murder * * *." In construing this statute in Turk v. State, 48 Ohio App. 489, 194 N.E. 425, 426, the court said: "The statute is clear and explicit, and the provision is `Whoever, purposely * * * kills.' In other words, there must be a purpose and intent to kill before the crime of murder is complete." The court further declared that the common law rule "is not the law of the state of Ohio."

Since the killing of Meinsen was unintentional, but committed in the perpetration of a robbery, his death was the result of accident merely or of murder according to whether the contract is governed by Missouri or Ohio law. The general rule is that the law of the place of contracting determines what are the obligations of any contract. American Law Institute, Restatement of Conflict of Laws, § 346. Both the Missouri and the Ohio courts hold that a contract of insurance is made in the state where the last act is done which is necessary to complete the contract and bind the insured and the insurer. Yeats v. Dodson, 345 Mo. 196, 127 S.W.2d 652, 656, 138 S.W.2d 1020; Cravens v. New York Life Ins. Co., 148 Mo. 583, 50 S.W. 519, 53 L.R.A. 305, 71 Am.St.Rep. 628; Equitable Life Ins. Co. of Iowa v. Gerwick, 50 Ohio App. 277, 197 N.E. 923, 926. In this instance the by-laws of the Order provide that the insurance "shall not accrue until twelve o'clock noon, standard time, of the day upon which the certificates are dated." The certificate was signed and dated at Columbus, Ohio, on February 11, 1931. The contract is, therefore, as the district court found, an Ohio contract. It became effective under the by-laws on the date it was signed in Ohio. Signing was the last act necessary to complete it. Eyring v. Kansas City Life Ins. Co., 234 Mo.App. 328, 129 S.W.2d 1086; Pickett v. Equitable Life Assur. Soc. of United States, Mo.App., 27 S.W.2d 452.

The finding of the court that the insurance certificate was an Ohio contract; that the insured was accidentally killed within its meaning; and that his death was not the result of murder, is sustained.

The second contention that the action was barred is based upon section 11 of the by-laws of the Order in effect in 1931, which reads: "No suit or proceeding, either at law or in equity, shall be brought to recover any benefits under this Article after six (6) months from the date the claim for said benefits is disallowed by the Supreme Executive Committee."

The claim was disallowed on July 17, 1939; the appellees were so notified by letter dated July 19, 1939; and the suit was begun on April 5, 1941, nearly 18 months after liability was declined.

In Ohio "the parties to a contract of insurance may, by a provision inserted in the policy, lawfully limit the time within which suit may be brought thereon, provided the period of limitation fixed be not unreasonable." Appel v. Cooper Insurance Co., 76 Ohio St. 52, 80 N.E. 955, 10 L.R.A.,N.S., 674, 10 Ann.Cas. 821; Bartley v. National Business Men's Ass'n, 109 Ohio St. 585, 143 N.E. 386, 387. In the Appel case, supra, involving a fire insurance policy, a provision similar to the one in the present contract barring an action on the policy "unless commenced within six months next after the fire" was held to be binding upon the parties; and in the Bartley case a two-year limitation was sustained. The action in this case was barred by the contract, if the lex loci contractus is controlling.

The applicable statute of limitations in Missouri where the cause of action arose is ten years. By the Act of March 18, 1887, p. 99 (now § 3351, R.S.Mo.1939, Mo.R.S.A. § 3351), the legislature of Missouri declared: "All parts of any contract or agreement hereafter made or entered into which either directly or indirectly limit or tend to limit the time in which any suit or action may be instituted, shall be null and void."

The question presented is whether the lex loci contractus or the lex fori controls. It is now settled "that the federal courts in diversity of citizenship cases are governed by the conflict of laws rules of the courts of the state in which they sit." Griffin v. McCoach, 313 U.S. 498, 503, 61 S.Ct. 1023, 1025, 85 L.Ed. 1481, 134 A.L.R. 1462; Klaxon Company v. Stentor Electric Manufacturing Co., 313 U.S. 487, 496, 61 S. Ct. 1020, 85 L.Ed. 1477; Pink v. A. A. A. Highway Express, Inc., 314 U.S. 201, 62 S. Ct. 241, 86 L.Ed. 152, 137 A.L.R. 957; Erie R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188, 114 A.L.R. 1487.

In Missouri the law of another state, or a contract made in another state and valid under its laws, will be enforced by the courts unless to do so would be contrary to the public policy of the state. Burg v. Knox, 334 Mo. 329, 67 S.W.2d 96; Maxey v. Railey & Bros. Banking Co., Mo. App., 57 S.W.2d 1091, 1093; Kroger Grocery & Baking Co. v. Reddin, 8 Cir., 128 F.2d 787, 791.

By the public policy of a state is meant "the law of the state, whether found in the constitution, the statutes, or judicial records." People v. Hawkins, 157 N.Y. 1, 12, 51 N.E. 257, 260, 42 L.R.A. 490, 68 Am.St.Rep. 736. In Burg v. Knox, supra, the court referred approvingly to the statement of the Supreme Court of Minnesota in Herrick v. Minneapolis & St. L. Ry. Co., 31 Minn. 11, 14, 16 N.W. 413, 414, 47 Am.Rep. 771, that "to justify a court in refusing to enforce a right of action which accrued under the law of another state, because against the policy of our laws, it must appear that it is against good morals or natural justice, or that for some other such reason the enforcement of it would be prejudicial to the general interests of our own citizens."

The district court having considered the Missouri law, found that § 3351, R.S.Mo. 1939, supra, expresses the public policy of the state of Missouri and refused to apply the six months' limitation stipulated in the contract. The court regarded the decisions of the Supreme Court of Missouri in Karnes v. American Fire Ins. Co., 144 Mo. 413, 46 S.W. 166; Richardson v. Chicago & A. Ry. Co., 149 Mo. 311, 50 S.W. 782, and Brucker v. Georgia Casualty Co., 326 Mo. 856, 32 S.W.2d 1088, as controlling.

In the Karnes case, supra, the insurance policy provided that "no suit or action of any kind against this company for a recovery of a claim under this policy...