Smith v. Taylor

• Decision Date: 05 April 1956
• Docket Number: Nos. 7378 and 7421,s. 7378 and 7421
• Citation: 289 S.W.2d 134
• Parties: Earl J. SMITH, Plaintiff-Appellant, v. Orville TAYLOR and Myrtle Welsh, Defendants-Respondents (two cases).
• Court: Missouri Court of Appeals

Page 134

289 S.W.2d 134

Earl J. SMITH, Plaintiff-Appellant, v. Orville TAYLOR and Myrtle Welsh, Defendants-Respondents (two cases).

Nos. 7378 and 7421.

Springfield Court of Appeals, Missouri.

April 5, 1956.

J. Grant Frye, Cape Girardeau, for appellant.

Blanton & Blanton, Sikeston, for respondent Myrtle Welsh.

McDOWELL, Presiding Judge.

This action was instituted in the circuit court of Scott County, Missouri, against defendants, undertakers, doing business in Sikeston, seeking to enjoin defendants from illegally carrying on an insurance business and for $800 damages. Separate motions to dismiss plaintiff's petition were filed by defendants and sustained. Plaintiff appealed.

The amended petition alleged that plaintiff is engaged in the undertaking business in Oran, Scott County, Missouri; that defendants are separately engaged in the undertaking business in Sikeston. Defendant Taylor operates under the business name of 'Taylor Funeral Home' and defendant Welsh under the firm name of 'Welsh Funeral Home.'

It is alleged that each of the defendants carry on an insurance business in violation of Sections 375.010, 375.310, 375.400 and 375.410, V.A.M.S.; that they solicit subscribers and issue to them burial certificates in which defendants agree in writing to furnish certain funeral services, named, to the subscribers in consideration of monthly premiums of $1. It sets out forms of the certificates issued by each defendant, and makes such forms a part of the petition.

It pleads that three persons holding certificates with Taylor Funeral Home, to-wit, Hedwig Victoria Scherer, Andrew Roberts and Annie R. Roberts, and one person, Crescentia Essner, holding a certificate issued by Welsh Funeral Home, died and that their kinsmen employed plaintiff to conduct the funerals and furnish the services provided for in the certificates of insurance held with defendants and that plaintiff did furnish such funeral services of the value of more than $200 each; that each of these certificate holders assigned their monetary interest in said insurance certificates to plaintiff in their lifetime; that plaintiff made demand of defendants for the payment of $200 as provided for in the certificates and defendants refused to pay.

It alleges that the acts of defendants in carrying on such insurance business are illegal and injurious to plaintiff's business; that plaintiff cannot compete with defendants so long as they illegally operate their business and that plaintiff has no adequate remedy at law.

It pleads that plaintiff has orally and in writing on numerous occasions requested the prosecuting attorney of Scott County, Missouri, to enjoin defendants from carrying on such illegal insurance business and from doing the acts ascribed to them.

The prayer is for injunction, enjoining defendants from illegally carrying on the alleged insurance business and for $800 damages.

Each of defendants filed separate motions to dismiss plaintiff's petition. Defendant Welsh based her motion to dismiss on three grounds: 1. a misjoinder of causes of action; 2. a misjoinder of defendants; 3. failure to state a cause of action.

Defendant Taylor based his motion to dismiss on: 1. failure to state a cause of action; 2. petition is too indefinite; 3. misjoinder of parties defendant.

The motions to dismiss filed by each defendant were heard by the court June 1, 1954, and taken under advisement. The court granted plaintiff ten days to amend his petition and took the balance of issues raised in motions under advisement until the next Law Day, July 15, 1954.

August 5th, during absence of defendant Welsh and her attorney, plaintiff filed an amended petition and at that time asked leave of court to dismiss his cause of action as to defendant Welsh, without prejudice, which request was granted.

Plaintiff refusing to plead further, the court dismissed his action against defendant Taylor on the ground that the petition failed to state a cause of action.

On August 18th defendant Welsh filed a motion to modify the order permitting plaintiff to dismiss as to defendant on August 5th, without prejudice, and asked the court to set aside the order on its own motion because the order was made without notice to defendant or her attorney and because defendant would be injured by such order which would allow plaintiff to again bring suit against defendant on the same grounds. On this date the court on its own motion set aside the judgment of dismissal and sustained defendant's motion to dismiss on the ground that the petition failed to state a cause of action. From this judgment plaintiff appealed.

Both appeals are pending in this court, being cases No. 7378 and 7421. They arise out of the same cause of action, involve the same issues and evidence and are ordered consolidated for opinion.

We will refer to appellant as plaintiff and to respondents as defendants, the position they occupied in the lower court.

There is no denial that the defendants were separately operating an insurance business in violation of the insurance law of this state and we hold it unnecessary to comment on the authority cited under plaintiff's points I and II of his brief.

Likewise, there is no dispute that the acts of defendants in writing insurance as alleged in the petition constitute a crime under the laws of this state. The crux of the case is in the contention under point III of plaintiff's brief, which is stated 'and the petition thereby stated a cause of action for injunctive relief.'

With this contention we do not agree. The facts pleaded are: That the defendants are conducting an insurance business in which they solicit subscribers and issue to them written certificates of insurance whereby for a monthly premium of $1 defendants agree to furnish the holder of such certificates a funeral and burial service as provided in the certificate provided the holder thereof is in good standing and has paid his premiums at time of death; that while living three persons who had subscribed for insurance with the Taylor Funeral Home and had been issued written certificates by said defendant, entitling them to burial services in the value of $200 each, had assigned such certificates to plaintiff; that these persons died and their kinsmen employed plaintiff to conduct the funeral and furnish funeral services, which defendant Taylor was required to furnish of more than the value of $200; and that one person holding a certificate of insurance with defendant Welsh had assigned such certificate to plaintiff during her life; that her kinsmen had employed plaintiff to conduct the funeral and furnish such services as defendant Welsh was required to furnish of more than $200; that plaintiff had made demand upon these defendants for the payment of $800, the amount of services furnished these deceased certificate holders had with defendants, and that defendants had refused to pay plaintiff for such services.

Then the petition makes this allegation: 'The acts of defendants are illegal and are injurious to plaintiff's business. Plaintiff cannot compete with defendants so long as they illegally operate as aforesaid. He has no remedy at law.'

First, we desire to point out that plaintiff seeks to collect from defendnats $800, being the value of the services defendants had contracted to furnish four deceased persons, named in plaintiff's petition, by virtue of an assignment of these policies of insurance. It would seem that plaintiff in one breath pleads an action at law to recover on alleged assignment of insurance policies and then pleads that he has no remedy at law. The law governing plaintiff's rights to injunctive relief is declared in State ex rel. Chicago, B. & Q. R. Co. v. Woolfolk, 269 Mo. 389, 190 S.W. 877, 878, as follows:

'The power of equity to enjoin the doing of acts threatening irreparable injury to property rights or which would constitute a public nuisance is inherent and has been exercised, both in England and America, by courts of chancery since their evolution as a distinct tribunal, nor can this power be devested because the performance of such acts may be a violation of the criminal law. On the other hand, a court of equity is powerless to enjoin the commission of any crime not violative of property rights nor involving the creation of a public nuisance, for the reason that it has no jurisdiction to enforce the criminal law nor to prevent the performance of any act of a criminal nature which does not necessarily prejudice private or public rights subject to its jurisdiction and control.' (Citing much authority.)

In Clark v. Crown Drug Co., 348 Mo. 91, 152 S.W.2d 145, 146, the law is stated:

'The basis of plaintiff's complaint is the illegal competition by defendant arising from its failure to obey the law. He asks the court to enjoin defendant from acts which he claims are crimes. We must first determine whether a court of equity has jurisdiction to grant such relief under the facts of this case. No question of public nuisance is raised or involved.

'Ordinarily a court of equity has no authority to enjoin the commission of a crime. State ex rel. Crow v. Canty, 207 Mo. 439, 105 S.W. 1078, 15 L.R.A., N.S., 747, 123 Am.St.Rep. 393, 13 Ann.Cas. 787.'

On page 147 of 152 S.W.2d, the court quotes from State ex rel. Chicago, B. & Q. R. Co. v. Woolfolk, supra, the rule we have set out in said case as the law and declares that the jurisdiction of a trial court, as a court of equity, must arise from the fact that plaintiff's property rights had been damaged. In discussing this matter the court makes the following statement of law:

'* * * 'The injury threatened by such an invasion is the impairment of the owner's business, for which there is no adequate remedy at law.' This rule, however, does not justify injunctive relief against an unlicensed or unlawful competitor in a calling not clothed with a public interest or charged with a public use. * * *'

In 43 C.J.S., Injunctions, ...