Scheufler v. Continental Life Ins. Co.

• Decision Date: 04 January 1943
• Docket Number: 38118
• Citation: 169 S.W.2d 359,350 Mo. 886
• Parties: Edward L. Scheufler, Superintendent of the Insurance Department of the State of Missouri, Respondent, v. Continental Life Insurance Company, a Corporation, Defendant, Kansas City Life Insurance Company, a Corporation, Respondent, Frank P. Aschemeyer (Intervening Petitioner), Appellant
• Court: Missouri Supreme Court

169 S.W.2d 359

350 Mo. 886

Edward L. Scheufler, Superintendent of the Insurance Department of the State of Missouri, Respondent, v. Continental Life Insurance Company, a Corporation, Defendant, Kansas City Life Insurance Company, a Corporation, Respondent, Frank P. Aschemeyer (Intervening Petitioner), Appellant

No. 38118

Supreme Court of Missouri

January 4, 1943

Motions for Rehearing and Modification Denied March 25, 1943.

Appeal from Circuit Court of City of St. Louis; Hon. Joseph Ward, Judge.

Reversed and remanded.

Powell B. McHaney for appellant.

(1) On appeal, the Supreme Court will determine the amount of compensation to be paid appellant for services rendered to the Superintendent of the Insurance Department of the State of Missouri in connection with the settlement and winding up of the affairs of Continental Life Insurance Company, as a question to be considered de novo. Sec. 6065, R. S. 1939; Robertson v. Mfg. Lumbermen's Underwriters, 145 S.W.2d 134; Bucknam v. Bucknam, 151 S.W.2d 1097; Lucas v. Mfg. Lumbermen's Underwriters, No. 37,666, 166 S.W.2d 537. (2) On this appeal the Supreme Court will accord no deference or value to the trial court's conclusion, because: (a) The evidence as to the nature and extent of appellant's services is undisputed. Robertson v. Mfg. Lumbermen's Underwriters, 145 S.W.2d 134; Jones v. Peterson, 335 Mo. 256, 72 S.W.2d 76; Givens v. Ott, 222 Mo. 410, 121 S.W. 23. (3) In failing to limit himself to the value of the legal services rendered between December 3, 1936, and March 19 1941, the trial court went outside the issues made by appellant's application and the evidence, and the trial court committed error. Rains v. Moulder, 90 S.W.2d 81; Munford v. Sheldon, 320 Mo. 1077; 9 S.W.2d 907; Friedel v. Bailey, 329 Mo. 22, 44 S.W.2d 9; Hecker v. Bleish, 319 Mo. 149, 3 S.W.2d 1008. (4) In considering de novo the question as to the fair and reasonable value of appellant's services the Supreme Court will give due consideration to the following factors: (a) The nature and extent of the services rendered, the importance of the matters involved to policyholders, the Superintendent of Insurance and others, the value of the property and assets affected, the responsibility imposed on appellant, the degree of professional skill and experience required, the amount of time devoted by appellant and the favorable results attained. 7 C. J. S. 1080; Robertson v. Mfg. Lumbermen's Underwriters, supra; Lucas v. Mfg. Lumbermen's Underwriters, supra; Blackhurst v. Johnson, 72 F.2d 644. (b) The opinion evidence of two lawyers of high professional standing that appellant's services were reasonably worth at least $ 20,000. Robertson v. Mfg. Lumbermen's Underwriters, supra; Lucas v. Mfg. Lumbermen's Underwriters, supra. (c) The approval of Ray B. Lucas, as Superintendent of the Insurance Department of the State of Missouri, that the sum of $ 17,000 requested by appellant is fair and reasonable. Sec. 6065, R. S. 1939. (d) The approval of Frank W. McAllister, General Counsel of Kansas City Life Insurance Company, as to the sum of $ 17,000, particularly since, under the contract of reinsurance and the decrees entered by the Circuit Court of the City of St. Louis on July 25, 1936, any fee allowed appellant is paid by Kansas City Life Insurance Company. Sec. 6065, R. S. 1939. (e) The fact that by reason of the agreement of the Superintendent of Insurance, General Counsel for Kansas City Life Insurance Company and appellant, appellant waived his right to seek an allowance in excess of $ 17,000.

Lawrence Presley and Preston Estep for Edward L. Scheufler, State Superintendent of Insurance, respondent.

(1) It was proper for the chancellor to take judicial notice of its own records and proceedings and such records were a part of the pleadings and proof. (a) It is not necessary to plead facts of which the court will take judicial notice. 31 C. J. S., sec. 13, p. 521; 49 C. J., pp. 36, 37; Barth v. Kansas City Elevated Ry. Co., 142 Mo. 535. (b) An original record will be judicially noticed by the same court in proceedings that are engrafted on, or ancillary to, it, such as petition for allowance of attorney fee and it is not necessary to offer such record in evidence. 31 C. J. S., sec. 50, pp. 622-23; Culhane v. Foley, 305 Mass. 542, 26 N.E.2d 331; Lewis v. Wilkerson, 237 Ala. 197, 186 So. 150; Pelz v. Bollinger, 180 Mo. 252; Ollesheimer v. Thompson Mfg. Co., 44 Mo.App. 172. (c) Furthermore, appellant testified as to the two previous allowances by the court for attorneys' fees, which additionally placed such records before the lower court for its consideration, and appellant has incorporated the two court orders granting the two previous allowances as attorneys' fees in the record herein, which, together with testimony of appellant in the lower court, places said previous orders of the court for allowance of attorneys' fees before this court as a part of the pleadings and proof in this cause. (2) Appellant's services as a general attorney for the Superintendent being at an end, it was entirely proper for the chancellor to consider appellant's services as a whole and fix his compensation accordingly. His compensation should not have been fixed piecemeal on the final hearing as to the total compensation he should receive for all of his services. Lucas v. Mfg. Lumbermen's Underwriters, No. 37666, 166 S.W.2d 537. (3) The allowance by the court to appellant of such sum as to make a total fee of thirty-two thousand dollars for all services rendered in the case was not so inadequate as to constitute an abuse of discretion by the chancellor. This court in an equity case will defer to the finding of the lower court. Sec. 6065, R. S. 1939; Hannibal v. Hannibal Bros. Ice Co., 338 Mo. 1242, 93 S.W.2d 1011. (4) Neither this court nor the lower court is bound by the opinions of Attorneys McAllister, Hoffmeister, Jones, Henson and Superintendent Lucas as to the value of the services rendered. Such opinions are merely advisory. Furthermore, there is no evidence that they took into consideration the two previous allowances out of which appellant received a total of twenty-four thousand five hundred dollars in arriving at their conclusions; that is, they did not consider the value of his services as a whole as general attorney. Robertson v. Mfg. Lumbermen's Underwriters, 145 S.W.2d 134. (5) In equity cases the legal views entertained by the chancellor are immaterial when, on the whole record, the proper decree was rendered. Reaves v. Pierce, 26 S.W.2d 611.

Barrett, C. Westhues and Bohling, CC., concur.

OPINION

BARRETT

Frank P. Aschemeyer, general counsel for the various superintendents of the Insurance Department of the State of Missouri in the proceedings involving the Continental Life Insurance Company, appeals from an order of the Circuit Court of the City of St. Louis allowing him an attorney's fee of $ 7,500.00, on the theory that the allowance was grossly inadequate and should have been for the sum requested, $ 17,000.00.

In January, 1934, Emmet O'Malley, then Superintendent of the Insurance Department of the State of Missouri, instituted proceedings against the Continental Life Insurance Company under the provisions of Article 10, Chapter 37, R. S. Mo. 1939, particularly Sections 6052-6070. After a trial the superintendent was ordered to take possession of the company, conduct its business and rehabilitate the company. Finally, under the court's direction, the business of the Continental Life Insurance Company was sold to and reinsured by the Kansas City Life Insurance Company. The final order approving the sale and terminating the orders to rehabilitate was entered on July 26, 1936. At that time the sum of $ 225,000.00 was withheld and set aside from the assets of the Continental Life Insurance Company for the purpose of paying the expenses of winding up the affairs of the company, including the fees of attorneys. This is indeed a most concise outline of a very complicated, hotly contested proceeding which involved several trials and appeals, but is all that is necessary as an introduction to the present controversy, which is merely an incident to and an intervening petition in the principal case.

The appellant was attorney for the Superintendent of Insurance from the time the proceedings were instituted in January, 1934, until the filing of the instant petition on March 19, 1941. His present application is for services rendered by him from December 3, 1936, to the date of his petition. Prior to December 3, 1936, other counsel were also employed as attorneys, together with Mr. Aschemeyer, to represent the department and the insurance company. As a result there were two prior applications and allowances for attorneys' fees in which he participated. The first allowance of $ 35,000.00 was for services up to May 25, 1934. Mr. Aschemeyer said that was a joint allowance to Judge Ridge, Mr. Aylward, Mr. Waechter and himself. His share in that allowance was $ 4500.00. Subsequently an allowance of $ 100,000.00 was made for services rendered during the period from May 25, 1934, to December 3, 1936. That allowance was to Mr. Waechter, Judge Ridge, Mr. Goodman, Mr. Aylward and the men in his office, as well as Mr. Aschemeyer. Mr. Aschemeyer's share in that allowance was $ 20,000.00.

Mr. Aschemeyer's petition and his uncontradicted evidence shows that from December 3, 1936, to March 19, 1941, he performed the following services which we briefly summarize:

After the Continental Life Insurance Company was ordered sold to the Kansas City Life Insurance Company he examined and approved for execution by the Superintendent of Insurance all deeds, assignments, indorsements and other instruments necessary to convey the title of all the property...