State ex rel. Missouri Mut. Ass'n v. Allen

• Decision Date: 07 January 1935
• Citation: 78 S.W.2d 862,336 Mo. 352
• Parties: State of Missouri at the Relation of the Missouri Mutual Association, a Corporation, Relator, v. Perry T. Allen, Walter E. Bailey and Robert J. Smith, Judges of the Springfield Court of Appeals
• Court: Missouri Supreme Court

78 S.W.2d 862

336 Mo. 352

State of Missouri at the Relation of the Missouri Mutual Association, a Corporation, Relator, v. Perry T. Allen, Walter E. Bailey and Robert J. Smith, Judges of the Springfield Court of Appeals

Supreme Court of Missouri

January 7, 1935

Relator's Motion for Rehearing Overruled January 7, 1935.

Writ quashed.

Kirk Hawkins and Argus Cox for relator.

(1) It is well settled in this State by numerous decisions of the Supreme Court that in an action at law the Court of Appeals cannot reverse a judgment of the trial court upon a question that was not passed upon by that court. R. S. 1929, sec 1061; Howell v. Jackson County, 262 Mo. 415; Tabor v. Ry. Co., 186 S.W. 691; Springfield v Smith, 19 S.W.2d 9; Morgan v. Mulhall, 214 Mo 462. (2) It is never permissible for an appellate court to convict the trial court of error for not doing something said court was not asked to do. The only way in which the trial court could have committed error in this case on the ground of waiver would have been its refusal to instruct the jury on that question and since it was not asked to so instruct the jury its failure to do so cannot be made the basis of error in the appellate court and for that reason the appellate court in this case is in conflict with the Supreme Court in the cases cited under Point 1 and also the following cases: Nolan v. Johns, 126 Mo. 166; Minter v. Bradstreet Co., 174 Mo. 492; Brown v. Globe Printing Co., 213 Mo. 652; Erickson v. Lundgren, 37 S.W.2d 635. (3) The question of waiver by defendant not having been presented to the Court of Appeals by appellant until he filed a reply brief the Court of Appeals was not authorized to consider it at all. Simmons v. Affoller and Cowan, 254 Mo. 174; Cech v. Mallinckroat Chemical Co., 323 Mo. 619; Sheer v. Trust Co., 49 S.W.2d 145. (4) The Missouri Penalty Statute under which damages and attorney's fees may be assessed against an insurance company for vexatious delay in paying a policy does not apply to a case where the insured dies in another state. In this case it is conceded that the insured died in the State of Kansas, hence, the Court of Appeals, in holding that damages and attorney's fees could be recovered in this action is in direct conflict with the following case by this court. Thompson v. Traders Ins. Co., 169 Mo. 29.

Williams & Stone, Edward E. Naber and James M. Meek for respondents.

(1) The purpose of a proceeding in certiorari is to maintain uniformity in the law, and this court will not, therefore, in such a proceeding consider whether or not the Court of Appeals correctly decided the case, nor whether or not the Court of Appeals erred in its application of rules of law to the facts stated in its opinion, but will determine only whether or not, upon those facts, said opinion creates a conflict between its rulings and the last previous ruling of this court on the same question of law. State ex rel. Hauck Bakery Co. v. Haid, 62 S.W.2d 402; State ex rel. Sei v. Haid, 61 S.W.2d 955; State ex rel. Silverforb v. Smith, 43 S.W.2d 1057; State ex rel. Arndt v. Cox, 38 S.W.2d 1081; State ex rel. Frisco Ry. Co. v. Haid, 37 S.W.2d 438; State ex rel. Weisheyer v. Haid, 26 S.W.2d 940. (2) On certiorari, Supreme Court will take the facts, as stated in the opinion of the Court of Appeals, and will not go beyond said opinion to ascertain the facts. State ex rel. Horspool v. Haid, 40 S.W.2d 611; State ex rel. Sei v. Haid, 61 S.W.2d 951; State ex rel. Silverforb v. Smith, 43 S.W.2d 1057; State ex rel. Iron Mountain Ry. Co. v. Reynolds, 286 Mo. 216. (a) And, Supreme Court is bound by conclusions of Court of Appeals as to the facts. State ex rel. Consolidated School Dist. v. Haid, 41 S.W.2d 808. (3) There is no conflict in the ruling of the Court of Appeals, upon the facts stated in its opinion, that defendant-relator waived its right to defend on account of alleged misrepresentations by the insured, and was thereby estopped to deny the validity of the policy in suit, and that plaintiff-respondent was, therefore, entitled to judgment, as a matter of law. Block v. U.S. F. & G. Co., 290 S.W. 436; State ex rel. Northwestern Natl. Ins. Co. v. Trimble, 20 S.W.2d 46; Gold Issue Mining & Milling Co. v. Fire Ins. Co., 267 Mo. 604, 184 S.W. 599; Pauley v. Business Men's Assur. Co., 217 Mo.App. 311, 261 S.W. 340; Jegglin v. W. O. W., 202 Mo.App. 367, 216 S.W. 815; Bennett v. Standard Accident Ins. Co., 264 S.W. 31; Reid v. Brotherhood, 232 S.W. 192. (4) There is no conflict in the ruling of the Court of Appeals, upon the facts stated in its opinion, that such waiver by defendant-relator could be urged by plaintiff-respondent, though not pleaded, and though no instruction on waiver was requested in the trial court for: (a) Waiver need not be pleaded. Block v. U. S. F. & G. Co., 316 Mo. 278, 290 S.W. 436; McCullough v. Phoenix Ins. Co., 113 Mo. 616; Coleman v. Central Mut. Assn., 52 S.W.2d 23; Ornellas v. Moynihan, 16 S.W.2d 1011; Williams v. Conn. Fire Ins. Co., 47 S.W.2d 207; Luthy v. Northwestern Natl. Ins. Co., 20 S.W.2d 299, writ of certiorari quashed State ex rel. Insurance Co. v. Trimble, 20 S.W.2d 46. (b) Waiver need not be presented by instructions, for failure to instruct is mere nondirection, which is not error. Wagner v. Security Benefit Assn., 276 S.W. 85; Williams v. Conn. Fire Ins. Co., 47 S.W.2d 209. (5) There is no conflict in the ruling of the Court of Appeals, upon facts stated in its opinion, that defendant's Instruction A was properly refused, for: (a) Defendant-relator tried and presented the case, both in the trial court and in the Court of Appeals, as did plaintiff-respondent, upon the theory that the contract in suit was a Missouri contract, and not a Kansas contract, and the case will be reviewed in this court, as an appellate tribunal, upon the theory on which it was tried. Toroian v. Parkview Amusement Co., 56 S.W.2d 135; Wertz v. Ry. Co., 40 S.W.2d 518; Kincaid v. Birt, 29 S.W.2d 98; Lohmeyer v. Cordage Co., 214 Mo. 688. (b) Defendant-relator, having offered Instruction 6, and having thus joined with plaintiff-respondent in submitting as an issue whether "defendant acted in good faith in resisting payment," cannot now claim error on account of the refusal of requested Instruction A, which simply tested the sufficiency of the evidence to make a jury question as to said issue, i. e., defendant's good faith. Parker v. Ry. Co., 41 S.W.2d 388; Smith v. Ohio Millers Mut. Fire Ins. Co., 26 S.W.2d 968.

Cooley, C. Westhues and Fitzsimmons, CC., concur.

OPINION

COOLEY

Certiorari to quash opinion of respondents, Judges of the Springfield Court of Appeals, in the case of Izadore Macan, plaintiff, v. Missouri Mutual Association, an insurance company, defendant, reported in 60 S.W.2d 402. Relator, defendant in said action, had issued a policy of insurance for $ 1000 upon the life of one Barbara Soptich, in which Macan was named as beneficiary. Upon the death of the insured Macan sued on the policy and recovered judgment for the face thereof, with interest and also for $ 100 as statutory penalty and $ 300 attorney's fee, because of the defendant's alleged vexatious refusal to pay. The court sustained defendant's motion for a new trial upon the stated ground that it had erred in excluding certain evidence, Exhibit C, offered at the trial by the defendant. The plaintiff appealed from that order to the Springfield Court of Appeals, which court reversed the trial court's order and remanded the cause with directions to the trial court to reinstate the verdict and enter judgment thereon. By this proceeding the defendant, relator here, seeks to quash the opinion and judgment of the Court of Appeals, on the ground that it is in conflict with prior decisions of this court. The chief grounds of conflict urged are that the Court of Appeals reversed the trial court on a question that had not been considered and passed upon by that court, in contravention of principles previously announced by this court, and that in failing to hold that the trial court's action in granting a new trial was sustainable because of error in having submitted to the jury the issue of vexatious refusal to pay the Court of Appeals contravened a former decision of this court.

In proceedings of this kind we are concerned only with the question of conflict and we look only to the opinion of the Court of Appeals for the facts, as has been sufficiently enunciated heretofore. [See State ex rel. Hauck Bakery Co. v. Haid, 333 Mo. 76, 62 S.W.2d 400; State ex rel. Sei v. Haid, 332 Mo. 1061, 61 S.W.2d 950; State ex rel. Silberforb v. Smith (Mo.), 43 S.W.2d 1054; State ex rel. Horspool v. Haid, 328 Mo. 327, 40 S.W.2d 611; State ex rel. Arndt v. Cox, 327 Mo. 790 38 S.W.2d 1079.] From the opinion of respondents the following facts appear: Plaintiff's petition was in conventional form and as summarized in the opinion pleaded a cause of action as upon an "old line" insurance policy, alleging performance by the plaintiff and the insured of all the conditions and stipulations of the policy, with further allegations charging vexatious refusal on the part of the defendant to pay. The answer admitted the issuance of the policy and that the plaintiff was therein named as beneficiary and denied generally the other allegations of the petition. It further pleaded in substance that the defendant was an assessment company organized under the laws of Missouri and as such was not liable for interest, attorney fees, or statutory penalty for vexatious failure to pay, and as a defense to plaintiff's alleged right of recovery pleaded that the insured had tuberculosis at the time she applied for the policy and died from that disease and in procuring the insurance had fraudulently represented that she did not have tuberculosis...