Sheets v. Iowa State Ins. Co.

• Decision Date: 12 February 1910
• Citation: 226 Mo. 613,126 S.W. 413
• Parties: SHEETS et al. v. IOWA STATE INS. CO.
• Court: Missouri Supreme Court

126 S.W. 413

226 Mo. 613

SHEETS et al. v. IOWA STATE INS. CO.

Supreme Court of Missouri, Division No. 2.

February 12, 1910.

Rehearing Denied March 15, 1910.

1. COURTS (§ 488) — APPELLATE JURISDICTION — CONSTITUTIONAL QUESTIONS — TRANSFER TO SUPREME COURT.

Where an appeal is transferred to the Supreme Court as involving constitutional questions, the Supreme Court must determine that question for itself before passing on the merits.

2. TRIAL (§ 274) — INSTRUCTIONS — OBJECTIONS AND EXCEPTIONS.

A recital that defendant then and there excepted and still excepts to certain numbered instructions asked by plaintiff, while a sufficient exception to the giving of the instructions, did not constitute a sufficient objection to the instructions, or to the court's action in giving them.

3. APPEAL AND ERROR (§ 170) — JURISDICTION — CONSTITUTIONAL QUESTIONS.

Where the constitutionality of a statute was first raised in defendant's motion for a new trial, it was waived, and could not be made the basis of the Supreme Court's jurisdiction of an appeal.

Appeal from Circuit Court, Grundy County; Geo. W. Wanamaker, Judge.

Action by Robert G. Sheets and another against the Iowa State Insurance Company. Judgment for plaintiffs, and defendant appeals. Transferred to the Kansas City Court of Appeals.

Plaintiffs instituted this suit against the defendant, a foreign fire insurance company, in the circuit court of Grundy county, on a policy of insurance issued by it to Ewing E. Adams & Son, and by them assigned to plaintiffs, to recover the sum of $2,000 as damages done to a stock of merchandise, insuring the same by fire, in the town of Cainsville, Mo. A trial was had, which resulted in a judgment for plaintiffs for the full amount sued for, with interest and cost. After an unsuccessful moving for a new trial, plaintiffs duly appealed the cause to the Kansas City Court of Appeals. The latter court transferred the cause to this court, for the reason stated that a constitutional question was involved therein.

Hall & Hall, Jas. C. Davis, and Hazen I. Sawyer, for appellant. E. M. Harber and A. G. Knight, for respondents.

BURGESS, J. (after stating the facts as above).

Counsel for respondents resisted the motion to transfer the cause to this court for the reason that the constitutional question suggested was not properly and timely presented to the circuit court, and was therefore waived, and could not for that reason be considered on appeal. This court must determine for itself all jurisdictional questions, and it is not bound by the rulings of the Court of Appeals upon such questions. The record discloses that appellant was a fire insurance company, organized under the laws of the state of Iowa, with its chief office at Keokuk, and was duly licensed to do business in this state. In September, 1904, and for several years prior thereto, one J. W. Henderson of Cainsville had been taking applications for insurance for this company and sending them to the company at Keokuk. The company would then issue the policies thereon from time to time and send them back to Henderson, who would countersign and deliver them to the insured; but, in violation of express orders from the company, he collected the premiums thereon from time to time due on them, aggregating some 700 policies, and remitted the premiums to the company at Keokuk, which received all of them without making a single objection to his doing so. The policy in question took the usual course, and Henderson countersigned and delivered it to Adams & Son, and collected from them the premium due thereon, and remitted the same to the company, which was likewise received by it without objection. The evidence also tended to show that Henderson knew of, and at the time assented to, the assignment of the policy to respondents.

Upon that state of the record, counsel for respondents asked, and the court gave, the following among eight other instructions in behalf of their clients:

"(3) Under the law of this state, it was the duty of defendant, it being a foreign insurance company, to make contracts of insurance upon property situated in this state only by lawfully constituted and licensed resident agents of this state, and J. W. Henderson, as such agent of the defendant, not only had the authority to make contracts of insurance upon property located in that part of this state, in which he was defendant's agent, but he had the authority to countersign all policies issued by defendant upon property in such portion of this state, and said Henderson as such agent had also the authority to consent that the interest of any person or persons holding a policy in defendant company upon property in said portion of this state, which had been countersigned by said Henderson, might be assigned to another or others, and thus make a contract of insurance upon property insured by defendant at the time of such purchase, and if said Henderson did have knowledge of and consent to the sale of the property covered by defendant's policy issued to E. E. Adams & Son and to said policy being assigned to plaintiffs by said E. E. Adams & Son, then in law said transfer was valid, and such assent of said Henderson as effectual as if given by defendant's secretary or other officer, or even its board of directors, the provisions in defendant's policy to the contrary notwithstanding. The consent to the assignment of the policy in suit by E. E. Adams & Son to plaintiff spoken of in the above and other instructions herein given upon the part of defendant insurance company by said Henderson must, however, have been indorsed on said policy."

Section 7995, Rev. St. 1899 (Ann. St. 1906, p. 3801), upon which said instruction was partially based, reads as follows: "Foreign companies admitted to do business in this state shall make contracts of insurance upon property or interests therein only by lawfully constituted and licensed resident agents, who shall countersign all policies so issued. And any such insurance company who shall violate any provision of ...