Orthwein v. Germania Life Insurance Company of City of New York
| Decision Date | 17 November 1914 |
| Citation | 170 S.W. 885,261 Mo. 650 |
| Parties | RALPH H. ORTHWEIN v. GERMANIA LIFE INSURANCE COMPANY OF CITY OF NEW YORK and GENEVA LEOTA ORTHWEIN, Appellants |
| Court | Missouri Supreme Court |
Appeal from St. Louis City Circuit Court. -- Hon. James E. Withrow Judge.
Affirmed.
Fidelio C. Sharp and Henry H. Oberschelp for appellants.
(1) Plaintiff has not stated a cause of action unless the allegations of the petition are sufficient for reliance on section 6944, Revised Statutes 1909. Blum v. Ins Co., 197 Mo. 513. (2) The Missouri statutes have no extra-territorial effect. The petition is silent as to where the policies were executed or delivered, and contains no allegations to show the policies were governed by any of the laws or statutes of Missouri. For aught appearing, the policies were executed in New York or some other State or country, and were subject to the laws of some other State or country. In that event no Missouri law or statute would apply. Hewitt v. Harney, 46 Mo. 371; Hilburn v Ins. Co., 129 Mo.App. 670. (3) Even if the policies were Missouri contracts and governed by the laws of Missouri, still there would be no cause of action. As the divorce was rendered in favor of the wife against the husband, the statute does not apply, that not being a "divorcement of the wife" as the term is therein used. Sec. 6944, R. S. 1909; Funk & Wagnall's New Standard Dictionary (1913), subject, Divorce, 3, 4; R. S. 1909, secs. 359, 2370. (4) "Again, another guide to the meaning of the statute is found in the evil which it is designed to remedy." It should be restricted to that, and not create new evils. Church v. United States, 143 U.S. 463; Blum v. Ins. Co., 197 Mo. 528; U.S. Cas. Co. v. Kacer, 169 Mo. 313; Westerman v. Supreme Lodge, 196 Mo. 711; Rose v. Ins. Co., 153 Mo.App. 97; Perry v. Strawbridge, 209 Mo. 632. (5) Even though the statute by its strict letter be applicable to this case, which we deny, yet it will be construed in the "light of reason." The spirit will prevail. Perry v. Strawbridge, 209 Mo. 621; Church v. United States, 143 U.S. 457; Oil Co. v. United States, 221 U.S. 1; Black on Interpretation of Laws (2 Ed.), secs. 29, 30. (6) Legislators as well as judges have always been regardful of the rights of women. No one can read the numerous acts of the Legislature from the first to the last, without being convinced beyond question that it has ever been the policy of this State to see that the innocent wife on divorcing her husband for his fault, lose none of her rights or property, but to retain all, to continue to hold the husband liable for her support, and under no circumstances to allow the guilty husband to gain an advantage by the divorce. This section must be construed in pari materia with those statutes, and in harmony with that settled policy. Saunders v. Saunders, 144 Mo. 494; Westerman v. Supreme Lodge, 196 Mo. 731; R. S. 1909, secs. 359, 2375, 2378. (7) If said Act of 1899 (now sec. 6944, R. S. 1909) is construed to apply to this case, divorce granted wife for husband's fault, and to authorize a decree in favor of plaintiff, then it is unconstitutional and void, and in violation of the fourteenth amendment to the United States Constitution, in denying to this defendant, Geneva Leota Orthwein, the equal protection of the laws: First, by making an unjust and unreasonable distinction and discrimination in penalizing innocent wives, and favoring, encouraging and rewarding offending husbands for their wrongs; second, by depriving a wife, even if innocent, of her rights and property as a beneficiary in a full-paid policy on her husband's life, yet continuing to allow the husband, even if guilty, to retain his interest as a beneficiary in a policy on her life; and third, by allowing a guilty husband, in case of divorce granted to the wife for his fault, both to retain his interest and ownership of a policy on the wife's life in the husband's favor and also to become the owner of the policy on his life which had been in favor of the wife, while the innocent wife, by such a divorce, loses her vested interest in a policy on her husband's life in her favor, and gets nothing, he retaining his absolute interest in a policy on her life in his favor. Fourteenth Amendment to U.S. Constitution; Cooley's Constitutional Limitations (7 Ed.), p. 561; Sutherland, Notes on U.S. Constitution, p. 733; Muller v. Oregon, 208 U.S. 418; Ritchie v. Wayman, 244 Ill. 509; State ex rel. v. Miller, 100 Mo. 439; Railroad v. Greene, 216 U.S. 417. (8) For the same reasons if the act is held applicable to this case, then it is in violation of section 53 of article 4 of the Constitution of Missouri, in that it is class and special legislation in favor of guilty husbands and against innocent wives, without any right or reason therefor. State ex rel. v. Miller, 100 Mo. 448. (9) If the act is held to apply to this case, then it is in violation of the fourteenth amendment to the United States Constitution in that it deprives this defendant of her property without due process of law, in that upon the granting of a divorce in favor of the innocent wife and against the guilty husband for his wrong, property absolutely vested in the wife, paid-up insurance policies in her favor on her husband's life, is taken away from her and given to the guilty husband. Ritchie v. Illinois, 155 Ill. 108; State v. Julow, 129 Mo. 163.
William R. Orthwein and Fred H. Bacon for respondent.
(1) The venue of the case at caption applies to all the facts alleged. Sec. 1823, R. S. 1909; Benton v. Brown, 1 Mo. 393; Burnes v. Burnes, 61 Mo.App. 618; Palmer v. Railroad, 76 Mo. 217. (2) When the place of making contract is not alleged in the body of the petition, or even where it is alleged that the contract was made in a different State than where the suit is brought, and the law of such State is not properly pleaded and proven, then the court will presume that the law of any such other State is the same as our law and the law of the forum controls. The Missouri law therefore applies to this case. Flato v. Mulhall, 72 Mo. 522; Matthews v. Railroad, 219 Mo. 550; Wyeth Co. v. Lang, 54 Mo.App. 147; Waite v. Bartlett, 53 Mo.App. 381; Law v. Crawford, 67 Mo.App. 154; Stephen on Pleading (9 Am. Ed.), chap. 281; 22 Ency. Pl. & Pr. 788, note 5, 812, note 1. (3) Appellant herself relies on Sec. 6944, R. S. 1909, to sustain her appeal. If the Missouri law does not apply, then the above section would not apply to appellants' side of this case. Blum v. Ins. Co., 197 Mo. 513; Haven v. Ins. Co., 149 Mo.App. 291. (4) Appellant's constitutional defenses are not well taken. Any vested interest appellant claims in policies sued on is by virtue of Sec. 6944, R. S. 1909, which said section also contains the proviso allowing the husband to change the beneficiary in case of death or divorcement. The statute must stand or fall as a whole, and appellant cannot claim the benefits of one part and contend that the other half is unconstitutional. Sec. 6944, R. S. 1909; Blum v. Ins. Co., 197 Mo. 513. (5) The purpose of the enactment of statutes taking away from the husband the right to assign the policy, or in any way interfere with it, was to protect the wife, so that in case she survives him, the proceeds might go to her free from his creditors. Insurance Co. v. Brant, 47 Mo. 419; Pollitz v. Robinson, 72 Mo. 201; Reilly v. Hickcox, 72 Mo.App. 617. (6) Section 6944, above cited, in an exemption statute, must be construed liberally and does not deprive appellant Orthwein of any vested right, but merely reserves in the second paragraph of the statute certain rights to the husband which he had prior to its enactment, and part of which, the first paragraph, deprives him of, and is directly in line with the New York statute. Kittel v. Domeyer, 175 N.Y. 205; Wanchaaf v. Masonic Mutual, 41 Mo.App. 206. (7) The statutes of the State of Missouri, regulating the business of life insurance, form part of the policies referred to in the petition, the same as recited therein at length. Appellant Orthwein's interest was always subject to the reservations in this statute and was subject likewise to the reservations in the policies, as appears in the petition, such as the cancelling of said policy for its cash surrender value, by the husband. Ins. Co. v. Cravens, 178 U.S. 389; Cravens v. Ins. Co., 148 Mo. 583; Kern v. Supreme Council, 167 Mo. 471. (8) The statutes being part of the policies at the time they were written, the right to change the beneficiary was the same as if reserved in the policy itself. Section 6944 merely does away with the necessity of inserting the reservation in the policy itself, in case of death or divorcement. Robinson v. Ins. Co., 168 Mo.App. 259; Waring v. Wilcox, 8 Cal.App. 317; Equitable Life Assn. Soc. v. Stough, 45 Ind.App. 411. (9) The only possible interpretation of section 6944 shows that the section meant that the husband should have the right to change the beneficiary regardless of who got the divorce. Haven v. Ins. Co., 149 Mo.App. 291; U.S. Casualty v. Kacer, 169 Mo. 315. Under the definition of word "divorcement:" Murray's English Oxford, Century, Standard and Webster's Dictionaries; March's Thesaurus.
OPINION
In Banc
Defendants unsuccessfully demurred to a second amended petition, and (standing on their demurrer, refusing to plead over and suffering judgment on the merits) appealed.
Appellant insurance company joining in the appeal but not in the abstract and brief, we assume it stands indifferent and neutral between plaintiff and its co-defendant. As it has to respond in any event, an adjudication vesting title to the policy fund in one or the other protects it.
The caption of the amended petition (said to be of significance on a...
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