State ex rel. Equitable Life Assur. Soc. of U.S. v. Allen

• Decision Date: 23 January 1940
• Docket Number: 36480
• Parties: State of Missouri at the relation of the Equitable Life Assurance Society of the United States, a Corporation, Relator, v. Perry T. Allen, Robert J. Smith and James F. Fulbright, Judges of the Springfield Court of Appeals, J. Carl Fogle and Harry A. Hall
• Court: Missouri Supreme Court

136 S.W.2d 309

345 Mo. 671

State of Missouri at the relation of the Equitable Life Assurance Society of the United States, a Corporation, Relator, v. Perry T. Allen, Robert J. Smith and James F. Fulbright, Judges of the Springfield Court of Appeals, J. Carl Fogle and Harry A. Hall

No. 36480

Supreme Court of Missouri

January 23, 1940

Motion for Rehearing Overruled December 13, 1939.

Motion to Transfer to Banc Overruled January 23, 1940.

Opinion of the Court of Appeals quashed.

William C. Michaels, Ralph M. Jones and James E. Sater for relator; Alexander & Green and Michaels Blackmar, Newkirk, Eager & Swanson of counsel.

(1) The opinion of the Springfield Court of Appeals should be quashed because it is directly in conflict with the last-controlling decision of this court in holding that assignees for collection (one a resident of New York, the other of Missouri) of a beneficiary residing in Louisiana under a policy issued in Louisiana to a resident of Louisiana where his death occurred, could sue in Missouri and secure service under Section 5894, Revised Statutes 1929, on a foreign insurance company. State ex rel. Phoenix Mut. Life Ins Co. v. Harris, 121 S.W.2d 141, 119 A. L. R. 862. (2) The record and opinion of the Springfield Court of Appeals should be quashed because it conflicts with controlling decisions of this court in that it wholly fails to give effect to and destroys the following entirely valid and unequivocal provisions of the contract: (a) That extended term insurance is without total and permanent disability benefits, and that the right to premium waiver in case of total and permanent disability arises only if the disability occurs while the policy is in full force and effect. (b) That the obligation in respect to waiver of premiums is only that "on each anniversary date of said policy during such disability (the Society) will waive payment of the premium for the ensuing year." (c) That premium waiver is conditioned on the furnishing of due proof of total and permanent disability and that such disability has existed for sixty days. And hereunder: Plain and unequivocal contracts must be enforced as written. State ex rel. Mut. Life of N. Y. v Shain, 126 S.W.2d 181; Prange v. International Life Ins. Co., 329 Mo. 651, 46 S.W.2d 523; State ex rel. Mut. Ben. v. Trimble, 334 Mo. 920, 68 S.W.2d 685; Wendorff v. Mo. State Life Ins. Co., 318 Mo. 363, 1 S.W.2d 99; State ex rel. Casualty Co. v. Cox, 322 Mo. 38, 14 S.W.2d 600; State ex rel. Prudential v. Shain, 127 S.W.2d 675; State ex rel. Western Auto Ins. Co. v. Trimble, 297 Mo. 659, 249 S.W. 902. Where a Court of Appeals gives such a contract a meaning not embraced within its terms, its opinion conflicts with such decisions. State ex rel. New York Life Ins. Co. v. Trimble, 306 Mo. 295, 267 S.W. 876; State ex rel. Mut. Ben. v. Trimble, 334 Mo. 920, 68 S.W.2d 685; State ex rel. Casualty Co. v. Cox, 322 Mo. 38, 14 S.W.2d 600; State ex rel. Prudential v. Shain, 127 S.W.2d 675; State ex rel. Western Auto Ins. Co. v. Trimble, 297 Mo. 659, 249 S.W. 902; State ex rel. Mut. Life of N. Y. v. Shain, 126 S.W.2d 181; State ex rel. Clark v. Shain, 119 S.W.2d 971. Where the opinion of a Court of Appeals necessarily involves a determination of questions in a manner consistent with the opinion or it could not stand, they are reviewable on certiorari although not discussed or mentioned by the Court of Appeals. State ex rel. Boeving v. Cox, 310 Mo. 367, 276 S.W. 869; State ex rel. Natl. Council v. Trimble, 292 Mo. 371, 239 S.W. 467. Provisions of a contract, which is the basis of the ruling of the Court of Appeals, may be considered on certiorari though not set out in the opinion. State ex rel. Mut. Life of Balt. v. Shain, 339 Mo. 621, 98 S.W.2d 690; State ex rel. Talbott v. Shain, 334 Mo. 617, 66 S.W.2d 826; State ex rel. Western Auto Ins. Co. v. Trimble, 297 Mo. 659, 249 S.W. 902; State ex rel. Kansas City v. Ellison, 281 Mo. 667, 220 S.W. 498.

Harry A. Hall and Gardner & Gardner for respondents.

Respondents' opinion correctly held that relator was given due proof of Pierson's disability. Hablutzel v. Home Life Ins. Co., 52 S.W.2d 489, 59 S.W.2d 639; Porter v. Equitable Life, 71 S.W.2d 773. Respondents' construction of the waiver of premium provision was proper. Cobb v. Unity Life, 140 So. 877; Eddins v. Natl. Life, 138 So. 430; Louisana Gen. Statutes, sec. 4113; Midcontinent Life v. Hubbard, 32 S.W.2d 701; Schuerman v. Gen. Amer. Ins. Co., 106 S.W.2d 920; Stahl v. Amer. Natl. Ins. Co., 70 S.W.2d 78; Minnesota Mutual v. Marshall, 29 F.2d 977, certiorari denied, 279 U.S. 851; Midcontinent Life v. Harrison, 53 P.2d 266; Bank v. N.W. Mut. Life, 26 S.W.2d 135. Respondents' property held that the company should give credit to the insured for all moneys held by it belonging to him. North v. Ins. Co., 231 S.W. 665; Hart v. Mo. State Life, 79 S.W.2d 793; Frey v. Great Southern Life, 167 So. 480; Olegene v. Eagle Life Ins. Co., 121 So. 881.

OPINION

Clark, J.

Certiorari to quash the record of the Springfield Court of Appeals in the case of Fogle et al. v. Equitable Life Assurance Society, 123 S.W.2d 595. In its petition for certiorari, the only claim made by relator is that the opinion of the Court of Appeals conflicts with our opinion in State ex rel. Phoenix Mutual Life Insurance Co. v. Harris, 343 Mo. 252, 121 S.W.2d 141, but in its brief relator claims that the Fogle case conflicts with other controlling decisions of this court.

Relator says that the conflict with the Harris case consists in the holding of the Court of Appeals "that assignees for collection (one a resident of New York, the other of Missouri) of a beneficiary residing in Louisiana under a policy issued in Louisiana to a resident of Louisiana where his death occurred, could sue in Missouri and secure service under Section 5894, Revised Statutes 1929, Mo. Stat. Ann., p. 4495, on a foreign insurance company."

Said section, in part, is as follows:

"Any insurance company not incorporated by or organized under the laws of this state, desiring to transact any business by any agent or agents in this state, shall first file with the superintendent of the insurance department a written instrument or power of attorney, duly signed and sealed, appointing and authorizing said superintendent to acknowledge or receive service of process issued from any court of record, justice of the peace, or other inferior court, and upon whom such process may be served for and in behalf of such company, in all proceedings that may be instituted against such company, in any court of this state or in any court of the United States in this state, and consenting that service of process upon said superintendent shall be taken and held to be as valid as if served upon the company, according to the laws of this or any other state. Service of process as aforesaid, issued by any such court, as aforesaid, upon the superintendent, shall be valid and binding, and be deemed personal service upon such company, so long as it shall have any policies or liabilities outstanding in this state, although such company may have withdrawn, been excluded from or ceased to do business in this state."

Respondents say that the Harris case can be distinguished from the Fogle case on the facts, "and even though in conflict, announces a rule of procedure and operates prospectively only."

The Fogle case is a suit brought in the Circuit Court of Barry County, Missouri, on a policy of life insurance issued by defendant, a corporation organized in New York and duly licensed to do business in Missouri. The policy was issued in Louisiana to a resident of that State who continued to reside there until his death. His wife, the beneficiary, also a resident of Louisiana, assigned her claim to the plaintiffs, one a resident of Missouri and the other a resident of New York. Process was served on the Missouri Superintendent of Insurance. By appropriate methods defendant raised and kept alive the question of jurisdiction in personam. Judgment for plaintiffs was affirmed by the Court of Appeals.

The Harris case, supra, was a suit on two policies of insurance issued by a Connecticut corporation duly licensed in Missouri. The policies insured the life of a resident of Missouri and provided that if he should become totally disabled through sickness or accident a certain sum would be paid to him monthly. Insured became insane and thereby totally disabled. His wife, also a resident of Missouri, was appointed his guardian and assigned the policies to a resident of Connecticut who brought suit in Missouri. Service was had on the Missouri Superintendent of Insurance. This court, en banc, held the service good under Section 5894, and that said statute prescribes the exclusive method of service on foreign insurance companies licensed in Missouri. We reviewed the history of the statute and our previous decisions construing it and held that the suit must be based on: (1) a policy issued or a liability incurred in Missouri while the company was licensed to do business here; (2) and (not or) the policy or liability must be outstanding in this State in the sense of being due here.

Neither in their brief nor oral argument have respondents argued or elaborated upon their contention that the instant case can be distinguished from the Harris case on the facts. In fact, respondents seem to concede conflict for, in their brief, they say: "respondents originally intended to urge this court to overrule the Harris opinion, feeling that it did not properly reflect the intent of the Legislature in passing Section 5894."

The facts in the instant case are the reverse of the facts in the Harris case. That is to say: in the instant case all the transactions in reference to the policy were had outside Missouri...