State ex rel. Ben Hur Life Ass'n v. Shain

• Decision Date: 17 August 1938
• Docket Number: 35717
• Parties: State of Missouri at the relation of Ben Hur Life Association, a Fraternal Insurance Corporation, Relator, v. Hopkins B. Shain, Ewing C. Bland and Robert M. Reynolds, Judges of the Kansas City Court of Appeals
• Court: Missouri Supreme Court

119 S.W.2d 236

342 Mo. 928

State of Missouri at the relation of Ben Hur Life Association, a Fraternal Insurance Corporation, Relator, v. Hopkins B. Shain, Ewing C. Bland and Robert M. Reynolds, Judges of the Kansas City Court of Appeals

No. 35717

Supreme Court of Missouri

August 17, 1938

Writ quashed.

Ira B. Burns, Burns & Woods and A. J. Stanley for relator.

(1) The opinion of the respondents wrongfully holds that because of estoppel the merger contract between the relator and the Loyal American was not effective and that liability was fixed against relator on the original policy issued by the Loyal American, according to all of the terms thereof. Laclede Power Serv. Co. v. Stillwell, 97 Mo.App. 258, 71 S.W 382; Lovell v. Ins. Co., 111 U.S. 272, 4 S.Ct. 390; Mo. Cattle Loan Co. v. Great So. Life Ins. Co., 52 S.W.2d 11; State ex rel. Moss v. Hamilton, 260 S.W 470, 303 Mo. 317; Kline v. Groeschner, 216 S.W. 648 282 Mo. 599; Thompson v. Lindsey, 145 S.W. 472, 242 Mo. 86; Coleman v. Ins. Co., 201 S.W. 544, 273 Mo 631. (2) The opinion of respondents wrongfully holds that relator is not entitled to the benefits of the liquidation or merger contract between it and the Loyal American in the action brought by Willie Bell Helm in which she is seeking to recover on a benefit certificate written by the Loyal American. In other words, respondents' opinion wrongfully gives the plaintiff the benefit of the contract aforesaid and relieves her from the obligations of it and wrongfully relieved her of the obligation of her election to stand on the merger or liquidation contract. Lovell v. St. L. Mut. Life Ins. Co., 111 U.S. 264, 4 S.Ct. 390; Fox v. Windes, 30 S.W. 323, 127 Mo. 502; State ex rel. v. Citizens State Bank, 274 Mo. 60, 202 S.W. 382; State ex rel. Goodman v. Regent Laundry Co., 196 Mo.App. 627, 190 S.W. 951; Sage v. Finney, 156 Mo.App. 30, 135 S.W. 996; Raum v. Kaldwesser, 4 Mo.App. 574; Wilbur v. Wilbur, 201 S.W. 387.

Edwin A. Harris and Edward E. Naber for respondents.

On certiorari, Supreme Court is concerned only with conflict. State ex rel. Hauck Bakery Co. v. Haid, 62 S.W.2d 402; State ex rel. Vesper-Buick Automobile Co. v. Daues, 19 S.W.2d 703; State ex rel. St. L.-S. F. Ry. Co. v. Haid, 37 S.W.2d 438; State ex rel. Am. Press v. Allen, 256 S.W. 1051; State ex rel. Ocean Acc. & Guar. Corp. v. Hostetter, 108 S.W.2d 19; State ex rel. Brince v. Franklin, 283 S.W. 714; State ex rel. Wahl v. Reynolds, 199 S.W. 979; State ex rel. Shawhan v. Ellison, 200 S.W. 1045; State ex rel. Met. St. Ry. Co. v. Ellison, 208 S.W. 443; State ex rel. McNulty v. Ellison, 210 S.W. 881; State ex rel. N.W. Natl. Ins. Co. v. Trimble, 20 S.W.2d 48, 323 Mo. 458; State ex rel. Wabash Ry. Co. v. Ellison, 204 Mo. 397; State ex rel. S.W. Natl. Bank of Kansas City v. Ellison, 266 Mo. 423, 181 S.W. 998; Mo. Cattle Loan Co. v. Great So. Life Ins. Co., 52 S.W.2d 11.

OPINION

Tipton, J.

We issued our writ of certiorari to review the judgment of the Kansas City Court of Appeals in the case of Willie Bell Helm v. Ben Hur Life Association. The opinion in that case is reported in 107 S.W.2d 844, and there a complete statement of the facts may be found.

Respondents, in their opinion, found that Sidney T. Cole was issued a policy of life insurance on September 1, 1930, by the Loyal American Life Association; that plaintiff Willie Bell Helm was named the beneficiary; that the policy was a Missouri contract; that it was an old line policy; that on July 14, 1934, relator took over all of the assets and liabilities of the Loyal American under a contract approved by the Insurance Departments of Illinois and Indiana, and that the Insurance Department of Missouri was not consulted; that shortly after that date relator called the Kansas City district manager of the Loyal American to its home office and told him of the merger, but did not tell him of the terms, and instructed him to collect the premiums from the policyholders without telling them of the merger; that on August 4, 1934, the district manager collected the premium from the insured for the month of August without telling him of the merger; that on August 14, 1934, relator's special representative and the district manager called on the insured and told him that the assets of the Loyal American "had been wiped out and were gone and there was nothing left and that because of insured's health, defendant (relator) would not accept him into its company;" that relator did not give the insured any notice of the merger, advise him of his rights under it, or tender him any return of any part of the reserve on his policy; that the insured did not take any steps to have his policy transferred to relator and never thereafter paid any premiums on the policy; that the insured died on June 30, 1935; that plaintiff notified relator of his death and relator denied any liability on the policy; that the first premium falling due and remaining unpaid was for the month of September, 1934; that at that time the reserve of the policy was sufficient to provide extended insurance for the full amount of the policy for two years and three hundred twenty-seven days from September 1, 1934; and that relator's contention is that on account of liens placed against the policy by the merger contract the policy lapsed several months before the death of the insured.

The only point made in the Court of Appeals is that the demurrer to the evidence should have been sustained. In denying relator's contention, the court ruled as follows:

"The contract of insurance sued on is an old line life policy. It plainly provided for extended insurance, and for cash surrender values. This was the situation July 14, 1934, when defendant, without notifying insured, took over this policy, assumed this obligation, and took possession of all the assets that supported insured's policy. Fraudulently concealing the true state of affairs from insured, defendant told him his policy was valueless, although it then had a cash value over and above the so-called lien it claims to have established thereon without the knowledge or consent of insured. Knowing the true facts, defendant concealed them from insured and caused its agent to collect the August premium on this very policy and still retains this premium, together with the admitted surplus of assets over and above its so-called lien, which, even under defendant's admissions, was and is still due insured on account of this policy. Insurer was not in bankruptcy or under court order or supervision when defendant contracted to take over all of its assets and good will. The insurance department of the State of Missouri was not consulted. No one represented insured. Although some policyholders were accepted by defendant and issued new policies and given credit for some cash value on their old policies, insured was not among the favored to whom this opportunity was offered. Defendant suggests that it was but acting the part of a 'good angel' in taking over a company that was about to go bankrupt. Its conduct toward this insured, and there were others similarly treated according to the record, is more like the conduct of a wolf wearing sheep's clothing. It took this policy, knowing its provisions, and thereafter collected one premium, which it never offered to return. By so doing it assumed the entire liability created by the policy. By reason of its fraudulent conduct and concealment, it is estopped to set up in defense a contract, the terms of which were concealed from insured and the true situation designedly misrepresented to him."

"'On a writ of certiorari to an appellate court, the determination of error, under our decisions, is limited to the finding of a conflict between the Court of Appeals' opinion and the latest ruling opinion of this court on the subject, either as to a general principle of law announced, or as to a ruling under a like, analogous, or similar state of facts. The purpose of certiorari is to secure uniformity in opinions and harmony in the law. [State ex rel. Vulgamott v. Trimble, 300 Mo. 92, 253 S.W. 1014.' State ex rel. Kroger Grocery & Baking Co. v. Haid et al., 323 Mo. 9, 18 S.W.2d 478, l. c. 480.]" [State ex rel. Himmelsbach v. Becker et al., Judges, 337 Mo. 341, 85 S.W.2d 420, l. c. 421.]

With this principle in mind, we will proceed to review the alleged conflicts with our decision, and ignore the decision of other jurisdictions and our Courts of Appeals. Relator contends that "the opinion of the respondents wrongfully holds that because of estoppel the merger contract between the relator and the Loyal American was not effective and that liability was fixed against relator on the original policy issued by the Loyal American according to all of the terms thereof." In this proceeding, it is not within our power to determine if respondents correctly ruled the question, but we are limited to the question of whether their ruling conflicts with a previous and...