State ex rel. Bankers' Life Co. v. Hendricks

• Decision Date: 23 February 1931
• Citation: 36 S.W.2d 409,225 Mo.App. 337
• Parties: STATE EX REL. BANKERS' LIFE COMPANY, RELATOR, v. CHARLES A. HENDRICKS AND THEODORE G. RECHOW, RESPONDENTS
• Court: Missouri Court of Appeals

36 S.W.2d 409

225 Mo.App. 337

STATE EX REL. BANKERS' LIFE COMPANY, RELATOR, v. CHARLES A. HENDRICKS AND THEODORE G. RECHOW, RESPONDENTS

Court of Appeals of Missouri, Springfield

February 23, 1931

Prohibition, Original Proceeding.

WRIT DENIED.

R. B Alberson, E. M. Nourse, O. O. Brown and F. M. McDavid, for appellant.

T. G Rechow and Herman Pufahl, for respondents.

(1) Prohibition will not be granted when the court has jurisdiction of the subject-matter and the parties. Schubach v. McDonald, 179 Mo. 182; State ex rel v. Ward et al., 262 Mo. 269, and 270; State ex rel. v. Stobin, 194 Mo. 51. (2) That an action for damages for money had and received will lie when the insurance company has breached its contract. McKee v. Phoenix Insurance Co., 28 Mo. 383; Slater v. Supreme Lodge K. L., 76 Mo.App. 387, 390. This case is for a wrongful expulsion of a member. Sues v. Insurance Co., 64 Mo.App. 1; Hartford Life Co. v. Langsdale, 261 U.S. 476, 67 L. Ed., 754; Shadley v. Grand Lodge Brotherhood of Railroad Trainmen, 212 Mo.App. 653, 254 S.W. 363; Tutt v. Mutual Life Insurance Co., 19 Mo.App. 677, 681; Bishop v. Life Insurance Co., 85 Mo.App. 307.

SMITH, J. Cox, P. J., and Bailey, J., concur.

OPINION

SMITH, J.

Relator, a corporation, domiciled at Des Moines, Iowa, seeks a writ of prohibition against the judge of the circuit court of Cedar county to prohibit him entertaining jurisdiction of a suit pending in that court wherein Theodore G. Rechow is plaintiff and this relator is defendant.

The action above described was instituted by the filing of a petition in April, 1930, in the circuit court of Polk county, by the said Theodore G. Rechow, wherein he seeks the recovery of $ 1500 as damages for breach of an alleged contract. A change of venue was applied for, and the case was sent to and is now pending in the circuit court of Cedar county, Missouri, over which court respondent, Charles A. Hendricks, presides as judge.

Thereafter, a demurrer was filed by this relator on the sole ground that respondent, Charles A. Hendricks, judge of the circuit court aforesaid, was without jurisdiction to try the case. This demurrer was by Judge Hendricks overruled, and this relator, now seeks at the hands of this court a writ of prohibition and in its petition sets up the various grounds upon which it depends and relies as a basis and reason for the issuance of such writ.

The question is one of jurisdiction. It is averred on the one hand, and denied upon the other, that the circuit court of Cedar county and Charles A. Hendricks, as judge thereof, has no jurisdiction to try the cause put in issue under the facts stated in the petition and filed by the said Rechow in the original case.

Briefly stated, the relator contends that this court should issue its permanent writ of prohibition directed to Charles A. Hendricks, judge of the circuit court of Cedar county commanding him to proceed no further with the consideration of the case of Rechow against the relator, because a determination of the case in that court will of necessity require an accounting of the business and affairs of the relator, who is domiciled in another state, and because it is a foreign corporation the circuit court of Cedar county is without jurisdiction to go into that foreign state for such an accounting.

The respondents practically concede that if under the petition filed in the circuit court an accounting is necessary, then the circuit court is without jurisdiction, but they stoutly insist that Rechow's petition in circuit court asks for a money judgment only and that the amount of that money judgment can be ascertained without any accounting or without any visitorial powers whatever and that if this matter of prohibition was out of the way all that Rechow would be required to prove in order to sustain his case would be, first, that there was a contract as alleged; second, that it was breached; and third, that he made the payments as alleged.

We think, then, the only question left, is for us to determine from the pleadings whether or not an accounting will be necessary for a proper and complete determination of Rechow's case. If an accounting is necessary and the court would have to go to the domicile of the relator for this accounting, then the writ of prohibition should go, but if such is not necessary then the writ should be denied. This question has been passed on many times by our courts. Two of the leading, determinative cases by the Supreme Court being, State ex rel. v. Denton, 229 Mo. 187, 129

S.W. 709; State ex rel. v. Shain, 245 Mo. 78, 149 S.W. 479.

The petition filed by Rechow in the circuit court alleged that the defendant is and was at all the times mentioned in the petition a corporation organized under the laws of the State of Iowa, and licensed to do business in the State of Missouri as a life insurance company on the assessment plan. That the defendant's name was "The Bankers Life Association," and was operating under that name at the time his certificate of insurance was issued. In October, 1911, the defendant changed its name to that of "The Bankers Life Company."

The petition alleges that on the 8th day of May, 1896, the defendant, in consideration of the payment of $ 73.50 in cash and the execution of four notes aggregating $ 49 which notes and all interest thereon were afterwards paid by the plaintiff, issued and delivered its certificate of membership No. 52738 in the sum of $ 2,000 payable in case of death to the children of the plaintiff; that said contract was made and entered into in Polk county, Missouri, of which county the plaintiff was then and has ever since been a resident. A sworn copy of said contract of insurance was attached to said petition, dated April 22, 1896, and showing delivery May 8, 1896. The remaining part of said petition is as follows:

"The plaintiff states that section 2 of article X of the Articles of Incorporation of the defendant provides that:

"The guarantee funds shall consist of the deposits pledged by each member of the association for the payment of assessments, and that the said deposit required of each member shall consist of the sum of $ 1 for each year of the age of the member at date of application counted at nearest birthday and may consist of cash or of note at four per cent interest, payable on such terms as the board of directors may prescribe and the board shall have power to declare a certificate of membership void and of no effect upon defalcation of payment of any note executed for said deposit.

"The plaintiff states that section 3 of article X of the Articles of Incorporation of the defendant company provides that:

"The reserve fund shall consist of all guarantee deposits forfeited to the association by lapsed members, and the interest accruing from all funds of the association of whatever nature; all gains, discounts and margins realized on sale of bonds and mortgages and on real estate, taken under foreclosure or otherwise, and all unused surplus arising from the contingent fund and all other sources. This reserve shall be set apart as an emergency fund for the purpose of providing for death losses in excess of one per cent per annum of the membership of the association, and for the further purpose of advances for the payment of death losses when the benefit fund is exhausted.

"The plaintiff states that the articles of incorporation and by-laws are printed on said contract or certificate and are made a part of the said contract or certificate and are the only sections that have any bearing on said contract or certificate so far as this plaintiff is concerned.

"The plaintiff states that it is provided in said certificate that until the death rate exceeds one per cent of the entire membership of the company, none of the funds of the company applicable to and available for the payment of excess assessments could be drawn upon.

"The plaintiff states that he paid the notes hereinbefore mentioned in the sum of $ 49 and all the interest thereon, up to the time of their payment and that he also paid all the calls or assessments payable on or before the first day of February, 1927.

"The plaintiff states that from the time of his first assessment on the foregoing certificate in June 1896, and until up to the first day of January, 1912, his assessments on said certificate made in the months of March and September of each year, and which were payable in April and October of such year, were $ 4.90 each and that his assessments made in December and June of such year and which were payable in January and July of each year were $ 6.37 and that beginning with January 1, 1912, his assessments made in March and September of each year and which were payable in April and October and such year, were $ 6.82 and that said assessments remained at such amounts and such sums until the March assessment which was payable in April, 1927.

"The plaintiff states that in October 1911, the defendant changed its name to the Bankers Life Company and ceased to write insurance on the assessment plan and that thereafter the defendant company has written insurance on the level rate plan only.

"Plaintiff states that as soon as he ascertained that the defendant had ceased to write insurance on the assessment plan, and that it would write insurance only on the level rate plan, he realized that if those persons who were then members of the association and whose certificates had been written on the assessment plan would be placed in a class by themselves or in a separate class for assessment purposes that it would destroy the value of his insurance because if no new members were taken in to be considered for assessment purposes, the rates and assessments would necessarily be increased in order to meet...