Schott v. Auto Ins. Underwriters

• Citation: 31 S.W.2d 7
• Decision Date: 04 September 1930
• Docket Number: No. 29218.,29218.
• Parties: FRANCES S. SCHOTT v. CONTINENTAL AUTO INSURANCE UNDERWRITERS, Appellant.
• Court: United States State Supreme Court of Missouri

31 S.W.2d 7

FRANCES S. SCHOTT v. CONTINENTAL AUTO INSURANCE UNDERWRITERS, Appellant.

No. 29218.

Supreme Court of Missouri.

Division One, September 4, 1930.

Appeal from Buchanan Circuit Court. — Hon. Sam Wilcox, Judge.

AFFIRMED.

Ellison, Dabbs & Flora and Randolph & Randolph for appellant.

(1) The court erred in finding Midwest Transit Company gave defendant notice of the accident within five days after said accident as required by the terms of said policy. National Paper Box Co. v. Life Ins. Co., 170 Mo. App. 361; Lorando v. Gethro (Mass.), 117 N.E. 187; McCarthy v. Rendle (Mass.), 119 N.E. 189. (2) The court erred in holding House Bill No. 53 enacted by the Fifty-third General Assembly, appearing at page 274 of Laws of 1925, is applicable to reciprocal or inter-insurance exchanges operating under Art. 13, Chap. 50, R.S. 1919. State v. Fenley, 275 S.W. 36. 309 Mo. 520; New York Life Insurance Co. v. Cobb, 219 Mo. App. 609, 282 S.W. 494; State ex rel. v. Buder, 315 Mo. 791, 287 S.W. 309; State ex inf. Atty. Gen. v. Imhoff, 291 Mo. 603, 238 S.W. 125. (3) The court erred in not holding that said statute violates Section 34 of Article 4 of the Constitution, in that it does not state that it repeals or amends Sec. 6385, Art. 13, Chap. 50, R.S. 1919. Its title does not clearly express that it relates to inter-indemnity contracts, reciprocals or inter-insurance contracts, and does not state that it amends Art. XIII, Chap. 50, R.S. 1919, and, particularly, it does not express that it amends or repeals Sec. 6385, Art. XIII, Chap. 50, R.S. 1919. Authorities under Point 2. (4) The court erred in not holding Sections 1 and 2 p. 274, Laws 1919, unconstitutional for the reason that it violates Sec. 28, Art. 4, of the Constitution, in that its title does not clearly express its subject and said title does not show that it creates direct liability in favor of injured claimants against insurers and that it prohibits and restrains insurers' rights to make purely indemnity contracts, but the title to said act indicates that it regulates only the manner of payment under liability contracts of insurance after the loss has occurred. Southard v. Short, 8 S.W. (2d) 903. (5) The court erred in not holding Section 2, Laws, 1925, p. 274, unconstitutional as being in violation of Sec. 28. Art. 2, of the Constitution in that it unlawfully deprives defendant of its right of trial by jury in the determination of questions of fact and in actions at law and unlawfully deprives it of its legal defense to said actions. Berry v. Railroad, 223 Mo. 358, 366; Kansas City v. Smith, 238 Mo. 323.

Eastin & McNeely for respondent.

(1) By the terms of the policy the United States mail was made the medium through which the notice, provided by the policy, should be communicated, and when the Midwest Transit Company deposited the notice in the mails properly addressed and stamped, it complied with the terms of the policy and the insurer took the hazard that the notice might not be delivered. Price v. Atkinson, 117 Mo. App. 56; 13 C.J. 300; McFarland v. Accident Assn., 124 Mo. 204. (2) The Act of 1925 applies to reciprocal exchanges. (a) The primary purpose is to ascertain and give effect to the intention of the Legislature. 25 R.C.L. 963; Henry & Coatsworth Co. v. Evans, 97 Mo. 52; State ex rel. v. Gmelich, 208 Mo. 159. In order to do this the statute must be read in a sense which harmonizes with the subject-matter and the general purpose sought to be accomplished, and the statute given a fair and reasonable construction with the view of effecting its purpose and object. 25 R.C.L. 1013; State v. Diviling, 66 Mo. 379; Boyd v. Railroad, 249 Mo. 124. It is proper also to consider the mischief sought to be avoided and the remedy intended to be afforded. 25 R.C.L. 1015; Heydon's Case, 3 Coke 7a, 14 Eng. Rul. Cas. 816; Hobein v. Murphy, 20 Mo. 447. Where there is conflict, or supposed conflict, between earlier and later enactments, it will be presumed that the later were enacted with full knowledge of the existing condition of the law. 36 Cyc. 1146; Sikes v. Railroad, 127 Mo. App. 324. And in an attempt to arrive at the intention of the Legislature all acts relating to the same subject should be read as together constituting one law and the several acts harmonized if possible. 36 Cyc. 1147; Grimes v. Reynolds, 184 Mo. 679. (b) The exemption contained in Section 6385 is from the minute regulations prescribed by the legislature for the control of companies with officers and capital, where the sole security of the assured depends upon the solvency and management of the company, and where the relation between the insurer and insured is purely one of contract. (c) The exemption contained in Section 6385 must be construed, therefore, as applying to those regulations and requirements, recognized by logic as well as law, as inconsistent with and destructive of the character and plan of the reciprocal, and not to those salient features of insurance, common alike to all forms of underwriting organizations. (d) The express exception of the "retaliatory law" (Section 6343) confirms and supports the view expressed above. The retaliatory law is equally applicable to all forms of insurance organizations. The reciprocal as well as the stock company may be the object of discrimination by other states, hence as to this feature of the general law, common alike to all, an exception is made. Why should not other exceptions of the same nature be made? (e) So with that common fundamental characteristic of all underwriting — protection against hazard — there can be no distinction between one type of organization and another. Klotzbach v. Bull Dog Auto Fire Ins. Assn., 267 S.W. 39 l.c. 40. (f) The Act of 1925 expressly includes the reciprocal, "whether a stock, a mutual, a reciprocal or other company." (g) The conclusion must follow that the Act of 1925 was designed to apply to all forms of casualty insurance and to all types of companies, and it does not follow that Section 6385 must be expressly amended. In fact, it is not at all necessary to consider this section in arriving at a correct conclusion, for the subject matter of the Act of 1925 relates to the very essence of all insurance and upon the theme of this act the form of the organization is immaterial. (3) The Act of 1925 is constitutional under the requirements of Sec. 28, Art. IV, of the constitution. 36 Cyc. 1017; Bergman v. Railroad Co., 88 Mo. 678; State v. Miller, 45 Mo. 495; State ex inf. v. Hedrick, 294 Mo. 43; State v. Bockner, 308 Mo. 400; Blair v. Chicago, 201 U.S. 400; St. Louis v. Weitzel, 130 Mo. 616; Witzman v. Railroad, 131 Mo. 618; State ex rel. v. Curtis, 4 S.W. (2d) 472.

RAGLAND, J.

"This is a suit in equity brought under Sections 1 and 2 of House Bill No. 53, enacted by Fifty-third General Assembly of Missouri, appearing at page 274, Laws of Missouri, 1925... .

"Judgment was rendered in favor of plaintiff, from which judgment the defendant, Continental Auto Insurance Underwriters, appealed. The defendant Midwest Transit Company, although served, made no appearance in the case.

"The plaintiff is a resident of St. Joseph, Missouri. The defendant Continental Auto Insurance Underwriters, hereinafter referred to as the Underwriters, is a reciprocal or inter-insurance exchange, organized under the law of Illinois and doing business in Missouri under Article 13, Chapter 50, Revised Statutes 1919, as amended by laws of 1921. Defendant Midwest Transit Company, hereinafter referred to as the Bus Company is a motor bus company operating between Chicago, Illinois, and Kansas City, Missouri, with offices in St. Louis, Missouri.

"On February 26, 1926, the defendant Underwriters issued its policy of insurance to the Bus Company covering the motor bus involved in the accident in which plaintiff was injured, which bus was owned by the defendant Bus Company, and which policy was in force at the time of the accident.

"The policy provided indemnity in part two thereof in favor of the assured as follows:

"`Part II — Indemnity.

"`Against actual loss from legal liability arising or resulting from claims upon the Assured for damages by reason of the ownership, maintenance, or use of the automobile described above, owned by the Assured; if such claims are made on account of:

"`Death and Injury to Persons.

"`(A) Bodily injuries including death resulting therefrom, suffered or alleged to have been suffered, by any person or persons, as the result of an accident occurring while this policy is in force; Provided, however, that the liability of the Underwriters is limited to Five Thousand Dollars for injury to or death of any one person, and, subject to the same limit for each person, and limited to Ten Thousand Dollars for any one or more accidents involving injuries to or death of more than one person.'

"Said policy provided under paragraph 2 of the conditions thereof:

"`2. The assured shall give the Underwriters at its Home Office in Springfield, Illinois, immediate written notice of any accident, damage or loss covered by the provisions of this policy with the fullest information obtainable... . It is a condition of this policy that in the event the assured fails to furnish the Underwriters in writing at its Home Office at Springfield, Illinois, notice of any accident, damage, theft or loss covered hereunder within five days from the date of the happening thereof, the Underwriters shall not be liable to the assured for any such loss or damage.'

"Paragraph 12 of the conditions of said policy provided:

"`12. No suit or action on this policy for the recovery of any loss or damage shall be sustainable in any court of law or equity until sixty days after each and all of the foregoing conditions and requirements shall first have been complied with by the assured, and the amount of the said loss or damage ascertained and determined under the provisions of this policy; and if the loss be sustained under clauses A...