Protection Mut. Ins. Co. v. Kansas City

• Decision Date: 02 May 1977
• Docket Number: No. KCD,KCD
• Citation: 551 S.W.2d 909
• Parties: PROTECTION MUTUAL INSURANCE COMPANY, Respondent, v. KANSAS CITY, Missouri, Appellant. 27826.
• Court: Missouri Court of Appeals

Page 909

551 S.W.2d 909

PROTECTION MUTUAL INSURANCE COMPANY, Respondent, v. KANSAS CITY, Missouri, Appellant.

No. KCD 27826.

Missouri Court of Appeals, Kansas City District.

May 2, 1977.

Motion for Rehearing and/or Transfer Denied June 1, 1977.

Application to Transfer Denied July 11, 1977.

Aaron A. Wilson, City Atty., Carrol C. Kennett, Asst. City Atty., Kansas City, for appellant.

Thomas J. Conway, Stephen G. Scholl, Kansas City, for respondent.

Before WASSERSTROM, P. J., and SOMERVILLE and TURNAGE, JJ.

WASSERSTROM, Presiding Judge.

This case arises out of the tragic 1968 riots in Kansas City, Missouri. During the civil commotion of April 10 and 11, 1968, one drugstore of Parkview Gem, Inc. was fire bombed and another was vandalized. Those losses were covered by an insurance policy issued by Protection Mutual Insurance Company, and Protection Mutual paid Parkview Gem $125,088.75 under that coverage. Thereafter on October 4, 1968, Protection Mutual submitted claim of damage to the City of Kansas City under the Missouri Mob Violence Statute, Section 537.140 RSMo 1969, for the amount which it had paid to Parkview Gem less salvage recovered of $15,354.36. The claim was denied, and Protection Mutual filed suit on December 28, 1970.

The City thereupon filed a motion to dismiss on the ground that the petition failed to state a cause of action. The circuit court sustained the motion, and Protection Mutual filed appeal to the Missouri Supreme Court. On that appeal, the City defended exclusively on the single theory that the Mob Violence Statute applied only to first and second class cities (as stated in the official revised statutes), whereas Kansas City is a constitutional charter city. The Supreme Court reversed in Protection Mutual Insurance Co. v. Kansas City, 504 S.W.2d 127 (Mo.1974) on the ground that the wording of the statute had been improperly changed in the revised statutes from that contained in the original legislation, and that the Mob Violence Statute did in fact apply to all cities of the State having population in excess of 25,000 inhabitants, regardless of classification.

On remand to the circuit court, the City filed another motion to dismiss alleging for the first time that Protection Mutual did not qualify as one of the classes of persons entitled to protection under the Mob Violence Statute and that the statute did not apply to Kansas City because the State had deprived it of control over the Kansas City Missouri Police Department. That motion was overruled, and the City repeated the same defenses in its answer. The case went to trial before a jury, resulting in a verdict of $110,890.68. Immediately prior to submission to the jury, the parties had stipulated that if the court determined as a matter of law that pretrial interest was proper, then such interest would be calculated and added to the jury verdict. The trial court did determine that pretrial interest was proper and pursuant to the stipulation calculated and added pretrial interest from the date of Protection Mutual's demand upon the City, in the amount of $40,540.41, as part of the total judgment.

The City's points of error on the present appeal may be summarized as follows: 1) that Protection Mutual has no standing to make claim; 2) that the City is not subject to the statute mentioned because the State has taken from the City the power to direct the police agency; 3) that the trial court erred in holding that the City is barred from reliance on the first two points just mentioned because of the prior Supreme Court decision in this case; 4) that the allowance of pre-judgment interest was improper; and 5) that the repeal of the Mob Violence Statute in 1975 by H.B. No. 398 terminated all rights of recovery thereunder and has discharged the City from any liability. If the City be correct in the last of those points, then the other assignments of error become immaterial. A discussion of this fifth point therefore calls for first attention.

I.

This point of error was not set forth in the City's principal brief even though the repeal statute was finally approved by the Governor on June 17, 1975, and even though the City's principal brief in this court was not filed until September 19, 1975. Disregard of this point would therefore be justified because of failure to raise the point in proper and timely fashion. Inclusion of a point on appeal in a reply brief for the first time comes too late. Morris v. Reed, 510 S.W.2d 234 (Mo.App.1974). Nevertheless, because this case involves public rights of a major metropolis, we prefer not to dispose of this point on the procedural ground, and will therefore address the point on the merits.

The City argues that Protection Mutual's claim depends entirely upon the Mob Violence Statute, that the repeal of that statute destroyed the cause of action, that all proceedings to enforce the claim must stop upon the effective date of the repeal if recovery has not been completely consummated, and that this result must follow even at the stage of an appeal after a judgment has been entered. That result could be true, however, only in the absence of a statutory clause saving pending causes of action.

A saving provision sufficient for the purposes of this case is provided in the companion statutory provisions §§ 1.170 and 1.180 RSMo 1969. The first of those statutes provides as follows:

"The repeal of any statutory provision does not affect any act done or right accrued or established in any proceeding, suit or prosecution, had or commenced in any civil case previous to the time when the repeal takes effect; but every such act, right and proceeding remains as valid and effectual as if the provisions so repealed had remained in force."

The second of those statutes provides:

"No action or plea, pending at the time any statutory provisions are repealed shall be affected by the repeal; but the same shall proceed, in all respects, as if the statutory provisions had not been repealed, except that all proceedings had after the repeal becomes effective are governed by procedural rules and laws then in effect, insofar as they are applicable."

Whenever the legislature repeals an existing statute, it is considered to have done so in contemplation of the general saving clauses above quoted; and unless the legislature specifically makes the repeal retroactive, it is presumed that those saving provisions are to be incorporated by reference with the same effect as if the repealing statute contained its own special saving clause. As stated in 2A Sands Sutherland Statutory Construction § 47.13:

"A legislature may enact a general saving statute which will save rights and remedies except where a subsequent repealing act indicates that it was not the legislative intention that particular rights and remedies should be saved. Although a legislature cannot bind future legislatures and each subsequent legislature can make its laws prevail over any preceding legislature, yet as all legislatures are presumed to act with a knowledge of existing law, it is presumed that they act with reference to any general saving statute. Thus, when a repeal is enacted unaccompanied by a provision saving existing rights which would be affected by its action, it is presumed that the legislature has acted with the intent to afford the protection of the general saving statute. In such cases the repealing act is to be considered as limited in its effect and operation in the same manner and to the same extent as if it contained the customary saving clause."

Applying this principle are State ex rel. Wayne County v. Hackmann, 272 Mo. 600, 199 S.W. 990 (banc 1917); Christine v. Luyties, 280 Mo. 416, 217 S.W. 55 (1920); Rogers v. Pacific Railroad, 35 Mo. 153 (1864); State v. Ross, 49 Mo. 416 (1872). The principle just mentioned is buttressed by the general presumption against retroactive effect of a statute. State ex rel. Wabash Ry. Co. v. Public Service Commission, 317 Mo. 172, 295 S.W. 86 (1927); Biedermann v. Mermod, Jaccard & King Jewelry Co., 210 Mo.App. 158, 242 S.W. 126 (1922).

Seeking to avoid the impact of the foregoing principles, the City argues strenuously that neither Parkview Gem nor its subrogee Protection Mutual has any "vested right" in a right of action against the City to recover for the mob violence. However, the wording of Sections 1.170 and 1.180 does not confine the operation of those sections to the preservation of "vested rights." Moreover, the City has cited no Missouri case, and independent research discloses none, construing those sections in such a limited fashion. Still further, the narrow construction which the City seeks to give to these statutes is inconsistent with the interpretation by the Missouri Supreme Court of the underlying concepts in State ex rel. St.Louis-San Francisco Ry. Co. v. Buder, 515 S.W.2d 409 (Mo. banc 1974) where the court discussed with reference to the retroactivity of statutes the concepts of "procedural rights," "substantive rights" and "vested rights." In that connection the court remarked at l. c. 411:

"It is best to keep in mind that the underlying repugnance to the retrospective application of laws is that an act or transaction, to which certain legal effects were ascribed, at the time they transpired, should not, without cogent reasons, thereafter be subject to a different set of effects which alter the rights and liabilities of the parties thereto. Merely to label certain consequences as substantive and others as procedural does not give sufficient consideration to this principle, and notions of justice and fair play in a particular case are always germane."

The City lays its heaviest emphasis on the case of Shelton v. City of Chicago, 42 Ill.2d 468, 248 N.E.2d 121 (1969) which involved a suit to collect damages under an Illinois statute permitting damages against a municipality because of civil riot, and where subsequent to the riot in question the legislature repealed the...