State ex rel. Adler v. Douglas

• Decision Date: 02 July 1936
• Docket Number: No. 34554.,34554.
• Citation: 95 S.W.2d 1179
• Parties: STATE OF MISSOURI at the relation of JACOB ADLER ET AL., Relators, v. JAMES M. DOUGLAS, JOHN W. JOYNT and GRANVILLE HOGAN, Judges of the Circuit Court, City of St. Louis.
• Court: Missouri Supreme Court

95 S.W.2d 1179

STATE OF MISSOURI at the relation of JACOB ADLER ET AL., Relators, v. JAMES M. DOUGLAS, JOHN W. JOYNT and GRANVILLE HOGAN, Judges of the Circuit Court, City of St. Louis.

No. 34554.

Supreme Court of Missouri.

Court en Banc, July 2, 1936.

Prohibition.

PROVISIONAL RULE MADE ABSOLUTE.

Strubinger, Tudor & Tombrink for relators.

(1) Respondents' demurrer to petition, motion to discharge, preliminary rule, motion to quash writ of prohibition and their motion to set aside order of this Honorable Court overruling respondents' motion to quash preliminary writ, admit the facts pleaded in relators' petition; such facts, showing relators' right to the writ, the preliminary rule in prohibition should be made permanent. Further pleadings are not tolerated. (2) The amended return of the sheriff of Cole County, showing that the writ was executed upon "The Federal Underwriters, Incorporated, attorney in fact for all subscribers at Federal Automobile Insurance Association and/or Federal Automobile Insurance Underwriters, by delivering three true copies ... to Joseph B. Thompson, Superintendent of the Insurance Department ..." does not conform to our statute, and constitutes no service upon the thousands of individually named defendants, residing in various counties in this State. (3) No jurisdiction was obtained over defendants under Section 5894, Revised Statutes 1929. State ex rel. Adler v. Ossing, 79 S.W. (2d) 255. (4) Joining numerous defendants in one action, where no joint liability exists, where each defendant is charged with an independent and personal obligation, where their interests are conflicting and their defenses different from each other and where no common interest between defendants arises and where each defendant is entitled to separate jury trial, is improper, and the petition showing such misjoinder of parties and causes of action, the court is without jurisdiction to render a valid judgment in said cause. Strong v. Crancer, 76 S.W. (2d) 383; Salisbury v. Salisbury, 274 Mo. 180, 202 S.W. 529; Perry v. Turner, 55 Mo. 418; Luecke v. Treadway, 45 Mo. App. 507; Lile v. Mefauver, 51 S.W. (2d) 473; Liney v. Martin, 29 Mo. 28; Woolner v. Levy, 48 Mo. App. 469; Atkins v. Hicks, 109 Mo. App. 95, 83 S.W. 75; Belt v. Ry. Co., 190 S.W. 1002; Burke v. Sheer, 130 N.W. 962; Gibbons v. Grinsel, 79 Wis. 365; 20 R.C.L. 677.

Geers & Geers and Foristel, Mudd, Blair & Habenicht for respondents.

(1) The sole question for determination here is: Did the respondents, as judges of the circuit court, at the time of the issuance of the preliminary or alternative writ out of this court, have jurisdiction to hear and determine the case of Rodowe Abeken, Ancillary Receiver, etc., plaintiff, against the Federal Underwriters Incorporated, attorney in fact, et al., No. 170,597, pending in their court? 50 C.J., pp. 678, 684; State ex rel. v. McQuillin, 246 Mo. 532; State ex rel. v. McQuillin, 260 Mo. 164; State ex rel. v. Reiley, 230 Mo. 175; State ex rel. v. Bolinger, 219 Mo. 223; State ex rel. v. Burney, 193 Mo. App. 336; State ex rel. v. Hartman, 221 Mo. App. 226; State ex rel. v. Tracy, 237 Mo. 109; State ex rel. v. Grimm, 239 Mo. 165. (2) When the subscribers applied for and obtained leave to do business in Missouri on the Reciprocal and Interinsurance Plan, and issue the policies to residents of the State of Missouri, they thereby subjected themselves to the provisions of Article XI, Chapter 37, Revised Statutes 1929, and the provisions of said article and chapter must be read into the said contracts or policies with like effect as if originally written therein as constituent parts thereof. Cravens v. Ins. Co., 148 Mo. 664; Schmidt v. Forrester, 228 Mo. 699; Orthwein v. Ins. Co., 261 Mo. 665. (3) Service of the writ of summons as provided in Section 5969, Revised Statutes 1929, does not violate the due process provisions of the State or Federal Constitution, State v. Gantt, 274 Mo. 490; Mining & Milling Co. v. Ins. Co., 267 Mo. 575; Insurance Co. v. Milling Co., 243 U.S. 93, 61 L. Ed. 610; Pennoyer v. Neff, 96 U.S. 735, 24 L. Ed. 573. (4) Service of process on the Superintendent of Insurance under this statute, is personal and not constructive. Cox v. Ins. Co., 137 Mo. App. 40; State v. Gantt, 274 Mo. 490; Mining & Milling Co. v. Ins. Co., 267 Mo. 524; Spangler v. Assn., 157 S.W. 667; Rogers v. Natl., 155 S.W. 875; Curhman v. F. & D. Co., 152 S.W. 126; Bankers v. Wire Co., 129 S.W. 765.

FRANK, J.

Prohibition: Relator seeks to prohibit the Circuit Court of the City of St. Louis from further proceeding with a certain cause pending in that court. On filing of relators' petition we issued our provisional rule in prohibition. Respondents demurred to relators' petition and moved to discharge the provisional rule. The demurrer and motion being overruled, the cause was docketed for hearing and has been orally argued and submitted.

The facts giving rise to this controversy are, in substance, as follows:

[1] The cause pending in the circuit court, the trial of which relators seek to prohibit, is a suit against several thousand subscribers or policyholders in a reciprocal insurance association to collect from each of them a special assessment, the total amount of which approximates the sum of $400,000. The petition in that cause alleges that the Federal Automobile Insurance Association and/or Federal Automobile Insurance Underwriters was an association of subscribers engaged in exchanging reciprocal insurance contracts. I confess I do not know what is meant by the use of the phrase "and/or." There is no reason why a statute, contract or legal document of any kind cannot be stated in plain English. The use of the symbol "and/or" has been condemned by some courts and should be condemned by every court. In Compton v. State, 91 S.W. (2d) 732, a Texas court had the following to say of its use:

"At the very threshold of this case, we are confronted with the onerous task of determining what is meant by the word or symbol `and/or' appearing in the indictment. If the pleader meant the conjunctive, he should have employed the word `and;' but if he meant to express the disjunctive, he should have used the word `or;' to use both leads to uncertainty and confusion. The primary requisite of criminal pleading is definiteness and certainty, so that nothing is left to inference or intendment. The American Bar Association Journal, in commenting on the growing use of `and/or,' said: `It is indicative of confused thought and should have no place in either statute or legal document as "and/or" makes confusion worse confounded.' In the case of Tarian v. National Surety Company, 268 Ill. App. 232, the court speaking through Justice O'CONNOR, said: `The use of this symbol arises in part from a doubt as to which of the two words should be used. Is it any solution of this doubt to leave the question to be solved by construction at a later time? We venture the assertion that any man who knows the meaning of the two words and the established distinctions in their use can take a modern contract or statute, bristling with this symbol, strike out every one of them and substitute the proper one of the two words, to the great clarification of the meaning of the instrument or act.'"

All of the documents in the instant case as well as the petition therein abound in the use of the phrase "and/or." Wholly ignoring the use of this meaningless symbol, it may be gathered from the petition that the several thousand defendants who are sued in the court below, were an association of persons engaged in exchanging insurance contracts. [2] If we disregard the use of the symbol "and/or" and forget the names of the entities which are supposed to constitute this collection of persons, and refer to them as "The Association of Subscribers" the reader will then know what we are talking about. Each person upon becoming a member of "The Association of Subscribers" signed a written document appointing the Federal Underwriters Incorporated as his attorney in fact. The Association of Subscribers was organized under the laws of Indiana with its home office in Indianapolis. It was authorized to and did transact the business of reciprocal or inter-insurance and the subscribers exchanged indemnity contracts in Missouri during the years of 1924, 1925, 1926 and 1927. As a condition to receiving authority to transact business in Missouri, the subscribers appointed the Superintendent of the Insurance Department of Missouri as agent upon whom service of process may be had, in any suit, action or proceeding brought upon any contract of insurance, or instituted against any subscriber upon any claim, demand or suit arising out of his contract of insurance. The losses of the association are paid by premiums collected from the subscribers. Each subscriber's liability is definitely limited by his contract of insurance. The liability is several and not joint. Each subscriber agrees to advance for his credit with the attorney in fact a fixed amount for the purpose of exchanging indemnity as contemplated in his contract. His further liability is limited to an amount which shall in no event exceed or be extended beyond one additional full annual premium deposited during any one year.

The character of insurance business conducted by defendants, as alleged in plaintiff's petition, is that contemplated and provided for in Missouri in Article 11, Chapter 37, Revised Statutes 1929. Section 5969, Chapter 37, provides for service of process upon the Superintendent of Insurance in all suits in this State arising out of such policies, contracts or agreements, which shall be binding upon all subscribers.

On March 2, 1928, "The Association of Subscribers" was found to be insolvent by the Superior Court of Marion County, Indiana, and one Garrett W. Olds was by said court duly appointed as receiver of the funds, assets, property and rights of action belonging to "The Association of Subscribers."...