State ex rel. Abeille Fire Ins. Co. v. Sevier

• Decision Date: 05 June 1934
• Docket Number: No. 33144.,33144.
• Citation: 73 S.W.2d 361
• Parties: STATE OF MISSOURI at the Relation and to the Use of ABEILLE FIRE INSURANCE CO. ET AL., Relators, v. NIKE G. SEVIER, Judge of the Circuit Court of Cole County.
• Court: Missouri Supreme Court

73 S.W.2d 361

STATE OF MISSOURI at the Relation and to the Use of ABEILLE FIRE INSURANCE CO. ET AL., Relators, v. NIKE G. SEVIER, Judge of the Circuit Court of Cole County.

No. 33144.

Supreme Court of Missouri.

Court en Banc, June 5, 1934.

Prohibition.

PROVISIONAL RULE IN PROHIBITION DISCHARGED.

R.J. Folonie, Igoe, Carroll, Higgs & Keefe, Ragland, Otto & Potter, F.D. Silber and E.R. Morrison for relators.

(1) The court's jurisdiction in the review proceeding, as respects collection of excess rates and refund thereof, rests exclusively on the stipulation and agreement for entry of the order (November 10, 1922) and hence there can be no jurisdiction or power to proceed in excess of or at variance with such agreements. State v. Westhues, 316 Mo. 457; In the Matter of Lincoln Gas & Elec. Light Co., 256 U.S. 512; Natl. Fire Ins. Co. v. Thompson, 281 U.S. 331; Aetna Ins. Co. v. Hyde, 34 Fed. (2d) 185. (2) The case of Aetna Insurance Company v. Hyde having been appealed to the Supreme Court of Missouri from a final judgment which did not reserve any jurisdiction and there dismissed, and not remanded for any purpose, the Circuit Court of Cole County had no jurisdiction of the subject-matter. Aetna Ins. Co. v. Hyde, 327 Mo. 115; Ry. Co. v. McKnight, 244 U.S. 368, 61 L. Ed. 1200; In the Matter of Lincoln Gas & Elec. Light Co., 256 U.S. 512, 65 L. Ed. 1066; Arkadelphia Milling Co. v. Railroad Co., 249 U.S. 134, 63 L. Ed. 517; B. & O. Railroad Co. v. United States, 279 U.S. 781, 73 L. Ed. 954; Anheuser-Busch Brewing Assn. v. Hier, 55 Neb. 557; Donnell v. Wright, 199 Mo. 304. (3) Restitution can only be ordered as to that which has been received by virtue of the judgment reversed. When the judgment of the circuit court was reversed and the cause dismissed by this court, the superintendent was thereby restored to his rate order of which he had been deprived by the judgment so reversed. Neither the reversed judgment nor the Supreme Court judgment involved anything except whether a rate order should or should not be annulled. Possession of any res was not adjudged or transferred by either judgment or process pursuant to either. Aetna v. Hyde, 327 Mo. 115; Reynolds v. Reynolds, 8 Pac. 184; Tenth Ward Road Dist. No. 11 v. Ry. Co., 12 Fed. (2d) 245, 45 A.L.R. 1513. (4) The respondent could not acquire jurisdiction upon motion of the superintendent resting upon the claim that merely by virtue of his office he represents policyholders to assert their private claims for refunds. State ex rel. Barker, Atty.-Gen., v. C. & A. Railroad Co., 265 Mo. 646; United States v. Brainerd, 250 Fed. 1011; Ry. Co. v. McKnight, 244 U.S. 368; State of Oklahoma v. Ry. Co., 220 U.S. 277, 55 L. Ed. 465; Wilson v. Polk County, 112 Mo. 126; Wiehtnechter v. Miller, 276 Mo. 322; Mason v. Wilks, 288 S.W. 936; Piggott v. Denton, 46 S.W. (2d) 618; Schindler v. Sorbitz, 268 S.W. 432; New Jersey Fid. & Plate Glass Ins. Co. v. Van Schaick, 259 N.Y. Supp. 108. (5) The judgment and order entered on May 26 deprived relators of their property without due process of law. (a) Defendants were denied the right to be heard. Barber Asphalt Paving Co. v. Ridge, 169 Mo. 376; Ex parte Nelson, 251 Mo. 63; Windsor v. McVeigh, 93 U.S. 274; St. Louis v. Railroad, 278 Mo. 205. (b) The judgment, and the judgment taken in connection with the order of May 27, impose such obstacles to appeal or review as amount to a denial of justice. Oklahoma Operating Co. v. Love, 252 U.S. 331; Ex parte Young, 209 U.S. 123. (c) Denial of due process exists because the court's action was arbitrary, capricious and not a judicial determination. Truax v. Corrigan, 257 U.S. 312, 66 L. Ed. 254; Hurtado v. People of California, 110 U.S. 517, 28 L. Ed. 232; Endicott-Johnson Corp. v. Encyclopedia Press, Inc., 266 U.S. 285, 69 L. Ed. 288; Hultberg v. Anderson, 252 Ill. 607. (d) A defendant cannot be required to make a deposit for costs and expenses of litigation as a condition of being heard. Meacham v. Bear Valley, 68 L.R.A. 600; Bennett v. Davis, 90 Me. 102, 37 Atl. 864; Eustis v. City of Henrietta, 90 Tex. 468. (6) The order entered May 27, appointing four "commissioners" and requiring a deposit of $70,000 deprives relators of their property without due process of law. See cases cited under 5 (d) supra. Although styled "commissioners" these are really referees. The order violates the statutes (Secs. 975, 976, 977, R.S. Mo.) limiting the power of the court to three referees. The order is oppressive, arbitrary and void. (7) Restitution is not a matter of right but of grace, jurisdiction of which can be exercised only in certain instances. The superintendent having stipulated that possession of the excess premiums was to be lodged with the insurance companies, and the superintendent never having had possession of such premiums, respondent has no power to award restoration nor to enter a judgment order inconsistent with such agreement, and so to do violates the Fourteenth Amendment to the Federal Constitution. Durham v. Railroad Co., 108 N.C. 304; Fitzalden v. Lee, 2 Dallas, 205; Crockett v. Lashbrook, 5 T.B. Mon. 530; Rochfort v. Birmingham, 7 Ir. R.C.L. 508. (8) The court had no jurisdiction to enter any judgment under the vague and indefinite allegations of the motion, nor did it have jurisdiction to enter individual judgments against the relators under allegations of joint liability averred in the motion. Windsor v. McVeigh, 93 U.S. 274. (9) The court has abused and exceeded any jurisdiction in entering judgment for a particular amount against each of relators without any accounting and in the face of the fact found that the amount subject to supposed restitution was to the court unknown. Dahlberg v. Fisse, 328 Mo. 213; State ex rel. v. Denton, 229 Mo. 195; Ross v. Noble, 6 Kan. App. 361.

Roy McKittrick, Attorney-General, and Gilbert Lamb, Assistant Attorney-General, for respondent.

(1) The Circuit Court of Cole County had jurisdiction to entertain motions for restitution and the Superintendent of Insurance can proceed to the enforcement of restitution by means other than that provided in the order made November 10, 1922, and the bond given. Aetna Ins. Co. v. Hyde, 34 Fed. (2d) 457; Natl. Fire Ins. Co. v. Thompson, 281 U.S. 331; State ex rel. Hyde v. Westhues, 316 Mo. 473; Tift v. So. Ry. Co., 138 Fed. 753; Tift v. So. Ry. Co., 159 Fed. 558; B. & O. Railroad Co. v. United States, 279 U.S. 785, 73 L. Ed. 954; Love v. North Am. Co., 229 Fed. 107; Northwestern Fuel Co. v. Brock, 139 U.S. 220, 35 L. Ed. 153; First Natl. Bank v. Elliott, 55 Pac. 881; Gott v. Powell, 41 Mo. 420; Railroad Co. v. Brown, 43 Mo. 294; Signal Co. v. Trust Co., 291 Mo. 68; Sec. 6284, R.S. 1919. (2) The Circuit Court of Cole County had jurisdiction to entertain the motion for restitution in Aetna Insurance Company et al. v. Hyde, upon that cause being reversed in the Supreme Court. Aetna Ins. Co. v. Hyde, 327 Mo. 121; Colburn v. Yantis, 176 Mo. 686; Keck v. Allender, 42 W. Va. 420, 26 S.E. 437; Coker v. Richey, 217 Pac. 638; Northwestern Fuel Co. v. Brock, 139 U.S. 220. (3) Restoring the superintendent to his reduction order meant that he was restored to the right to enforce same and to compel restitution of that which had been collected in violation of the order. Tenth Ward Road Dist. No. 11 v. Ry. Co., 12 Fed. (2d) 247. Cases cited under Points 1 and 2. (4) The Superintendent of the Insurance Department in his official capacity and as defendant in the review suit is entitled to compel restitution of the excess rates collected by relators. Aetna Inc. Co. v. Hyde, 327 Mo. 122; In re Englehard & Sons Co., 231 U.S. 651, 58 L. Ed. 416; Ex parte Lincoln Gas Co., 256 U.S. 517, 65 L. Ed. 1070; Love v. North Am. Co., 229 Fed. 103; United States v. Brainerd, 250 Fed. 1013. (5) The order dated May 26 afforded to the relators due process of law. The point made cannot be tried out in prohibition. State ex rel. Hyde v. Westhues, 316 Mo. 457; Mastin v. Sloan, 98 Mo. 252; Ry. Co. v. Wear, 135 Mo. 230; State ex rel. v. McQuillin, 262 Mo. 256; State ex rel. v. Hartman, 300 S.W. 1054. (6) The court properly appointed four commissioners. Because of the situation of the parties and the excess rates in the hands of the companies the court was authorized to require the deposits from relators. Signal Co. v. Trust Co., 291 Mo. 68. The point made cannot be tried out in prohibition. Cases cited under Point 5. (7) The matter stated under relators' point 7 is a restatement of points theretofore made. (8) The motion for restitution is full and complete in its allegations as to the facts. It was not a pleading but a motion equitable in its nature and the court was entitled to enter such judgment as the facts warranted. Cases cited under Points 1 and 2. The point made cannot be tried out in prohibition. Cases cited under Point 5.

John T. Barker, Floyd E. Jacobs and Glenn C. Weatherby, Special Counsel for the Superintendent of the Insurance Department.

(1) These insurance companies collected excessive premiums by virtue of a stipulation and judgment of the circuit court; when the reduction order was upheld it was mandatory on them to return all excessive and illegal premiums collected to the policyholders; the judgment of restitution rendered against them by the circuit court was proper and should be sustained. Aetna Ins. Co. v. Hyde, 34 Fed. (2d) 185; Natl. Fire Ins. Co. v. Thompson, 281 U.S. 331; Carson v. Suggett, 34 Mo. 364; Ex parte in the Matter of Lincoln Gas & Elec. Light Co., 256 U.S. 512; B. & O. Railroad Co. v. United States, 279 U.S. 781; 96 Am. St. Rep. 145; Tift v. So. Ry. Co., 159 Fed. 555; Bank v. Elliott, 60 Kan. 172, 56 Pac. 880; Colburn v. Yantis, 176 Mo. 670; Brown v. Detroit Trust Co., 193 Fed. 626; Hall v. Emmons, 11 Abb. Prac. (N.S.) 435; Fleming v. Reddick's Exr., 5 Grattan, 272, 50 Am. Dec. 119; Horton v. State, 63 Neb. 34, 88 N.W. 146; In re Walter, 89 Ala. 237, 7 So. 400; Keck v. Allender, 42 W. Va. 420, 26 S.E. 437; Coker...