The State ex rel. Merchants Reserve Life Insurance Co. v. Revelle

• Decision Date: 02 July 1914
• Parties: THE STATE ex rel. MERCHANTS RESERVE LIFE INSURANCE COMPANY v. CHARLES G. REVELLE, Superintendent of Insurance
• Court: Missouri Supreme Court

168 S.W. 697

260 Mo. 112

THE STATE ex rel. MERCHANTS RESERVE LIFE INSURANCE COMPANY v. CHARLES G. REVELLE, Superintendent of Insurance

Supreme Court of Missouri

July 2, 1914

Writ denied.

A. T Dumm for relator.

(1) Mandamus is the proper remedy in this case. State ex rel v. Cook, 171 Mo. 348; State ex rel. v Vandiver, 213 Mo. 187; State ex rel. v Vandiver, 222 Mo. 206. (2) The demurrer to the petition for the writ (standing as and for the writ itself) admits all the material facts alleged therein. Dodson v. Lomax, 113 Mo. 555; Goodson v. Goodson, 140 Mo. 206; Rodgers v. Ins. Co., 186 Mo. 248; State ex rel. v. Reynolds, 121 Mo.App. 705. (3) Relator is an assessment insurance company, and the policy which it proposes to write in Missouri is a contract of insurance on the assessment plan, as such contract is defined by the laws of this State. Secs. 6950, 6955, R. S. 1909; Elliott v. Life Ins. Co., 163 Mo. 132; Hanford v. Ben. Assn., 122 Mo. 50; Westerman v. Supreme Lodge, 196 Mo. 715; Haydel v. Life Assn., 98 F. 200; Haydel v. Life Assn., 104 F. 718, 44 C. C. A. 169; Hayden v. Life Ins. Co., 136 F. 285; Crosby v. Mut. Reserve, 78 N.Y.S. 237; Smoot v. Life Assn., 138 Mo.App. 438; McCoy v. Life Assn., 134 Mo.App. 35.

John T. Barker, Attorney-General, and W. T. Rutherford, Assistant Attorney-General, for respondent.

(1) The character of an insurance company is determined by the policy it issues. Toomey v. Knights of Pythias, 147 Mo. 129; Jacobs v. Life Assn., 146 Mo. 523; Falkens v. Ins. Co., 98 Mo.App. 480. (2) Relator is not an assessment company, and the certificate filed with respondent is not a contract of insurance on the assessment plan, as defined by the laws of Missouri. Williams v. Insurance Co., 189 Mo. 80; Aloe v. Insurance Co., 164 Mo. 687.

BROWN, J. Woodson, J., concurs in separate opinion.

OPINION

In Banc

Mandamus.

BROWN J.

Mandamus to compel the State Superintendent of Insurance to issue a license to relator to write life insurance in this State upon the assessment plan.

Relator, in appropriate averments, states that it is an insurance company incorporated in the State of Illinois, and authorized under the laws of that State to write life insurance upon the assessment plan. After alleging that it has complied with the requirements of section 6955, Revised Statutes 1909 (which section designates what a foreign life insurance company must do to entitle it to a license to transact business in this State on the assessment plan), relator avers that the respondent has refused to issue to it a license to do business in this State.

In his return respondent admits that the application of relator for license was made to him in due form. He, however, asserts that the relator is not entitled to the license demanded, for the reason that the policies or contracts of insurance which relator proposes to write and sell in Missouri are not in conformity with the provisions of said section 6955, in this: That said policies or contracts fail to "show that the liabilities of the members (policy holders) are not limited to fixed or artificial premiums," as required by said section.

The alleged failure to recite in the policies which relator proposes to write the fact that the liabilities of the holders thereof "are not limited to fixed or artificial premiums" constitutes, under the law and pleadings, the sole issue for our consideration.

All that part of the proposed policies which appears above the signatures of the officers is on the first page thereof and in large plain letters about one-fourth of an inch in size, and reads as follows:

MERCHANTS RESERVE LIFE INSURANCE COMPANY

Incorporated Under the Laws of the State of Illinois

No. $ 2000.

Hereby Insures the Life of of State of and agrees to pay Two Thousand Dollars immediately to if living, otherwise to the insured's executors, administrators or assigns in the manner herein provided, at the Home Office of this Company, in the City of Chicago, Illinois, upon the presentation of this policy and the receipt and acceptance of satisfactory proofs of death of the insured. This contract for Insurance is made in consideration of the application therefor which is hereby made a part of this contract. And in further consideration of the sum of Dollars premium as agreed between the parties hereto and according to the rates specified herein, being the premium for Insurance for the period terminating on the -- day of 19 --, and in further consideration of the Payment on said last-named date to this Company at its designated depository as the premium for Whole Life Insurance of the sum of Dollars and a like sum quarterly thereafter, which shall be due on the first days of January, April, July and October of each year during the continuance of this policy.

This policy is issued and accepted subject to the benefits, stipulations and conditions, as set forth on the following pages which form a part of this contract as fully as if they were recited at length over the signatures hereto affixed.

In Witness Whereof (the usual attesting clause).

Relator attaches to its application seven copies of the policies which it proposes to write and sell in Missouri, and seems to concede that there is nothing on the front page of its proposed policies which would indicate that the premiums to be paid thereunder are not fixed and unchangeable, and for that reason in contravention of the provisions of section 6955, Revised Statutes 1909, hereinbefore noted.

Relator, however, insists that while the front page of its policies may indicate that the premiums to become due thereunder are fixed and agreed upon, yet the application of the insured and the stipulations and conditions printed on the back or outside of said proposed policies clearly show that the relator reserves the right to call for additional payments in case the premiums specified on the front page of such policies are insufficient to meet the requirements of said policies.

In relator's brief it is asserted that in the seventh paragraph, under the caption, "Benefits, Stipulations and Conditions," on the back of relator's proposed policies, the following condition is found:

"Should the premium be insufficient to meet the requirements of this policy, the company reserves the right, in compliance with the law of its incorporation, to call for the difference necessary to meet the requirements and to fix the time for the payment thereof."

We have carefully examined all that is printed or written on the proposed policies under the caption, "Benefits, Stipulations and Conditions," and find that the above-quoted condition only appears on one of said proposed policies under that caption. However, in six of said proposed policies, in the eleventh paragraph, printed under said caption, the following is found:

"Stipulated Premium. Each policy holder shall pay quarterly fixed sums, graduated according to his age at entrance."

The above paragraph, instead of showing that the premiums are not fixed and definite, tends to show exactly the opposite, i. e., that the premiums are fixed "according to the age at entrance" which recital, of course, announces the same rule under which contracts of insurance are written in the old line companies.

We have, however, found that the quoted condition which relator...