Weatherby v. Jackson
| Citation | 215 S.W.2d 742,358 Mo. 542 |
| Decision Date | 13 December 1948 |
| Docket Number | 40814,40815,40877 |
| Parties | Glenn Weatherby, Appellant, v. Owen G. Jackson, Superintendent of Insurance of the State of Missouri; Richard R. Nacy, State Treasurer of the State of Missouri; and Forrest Smith, State Auditor of the State of Missouri, Respondents. Floyd E. Jacobs and Grace L. Henderson, Administratrix De Bonis Non of the Estate of Mitchell J. Henderson, Deceased, Appellants, v. Owen G. Jackson, Superintendent of Insurance of the State of Missouri; Richard R. Nacy, State Treasurer of the State of Missouri, and Forrest Smith, State Auditor of the State of Missouri, Respondents. John T. Barker, Appellant, v. Owen G. Jackson, Superintendent of Insurance of the State of Missouri; Richard R. Nacy, State Treasurer of the State of Missouri, and Forrest Smith, State Auditor of the State of Missouri, Respondents |
| Court | United States State Supreme Court of Missouri |
Appeal from Cole Circuit Court; Hon. Sam C. Blair, Judge.
Affirmed.
Ben W Swofford, Robert L. Jackson, John H. Hendren and Henry P Andrae for appellant Glenn Weatherby.
(1) The appellant's contract of employment has been ratified by legislative enactment. Sec. 5985a, R.S. 1939, Laws 1941, p 397, Sec. 1; Aetna v. O'Malley, 343 Mo. 1232 124 S.W.2d 1164. (2) Appellant is a "person" who is given the right to prove his "claim" in this proceeding, under the specific terms of Section 5985a. Sec. 5985a, R.S. 1939; Laws, 1941, p. 397, Sec. 1; City of St. Louis v. Senter Commission Co., 337 Mo. 238, 85 S.W.2d 21; Prigg v. Commonwealth of Pennsylvania, 41 U.S. 539, 16 Peters, 539, 10 L.Ed. 1060. (3) Section 5985a must be held to be a ratification of appellant's employment contract by the State of Missouri, since it was passed with full knowledge of the existence of such contract and its terms, and was a recognition of the State's obligation to appellant. Sec. 5985a, R.S. 1939; Laws, 1941, p. 397, Sec. 1; Aetna v. O'Malley, 343 Mo. 1232, 124 S.W.2d 1164; State ex rel. Lucas v. Blair, 346 Mo. 1017, 144 S.W.2d 106; State v. Eckhardt, 232 Mo. 49, 133 S.W. 321; 52 C.J. 1146, sec. 4; 59 C.J. 186, sec. 323; State v. McKay, 43 Mo. 594; State ex rel. Kelly v. Hackmann, 275 Mo. 636, 205 S.W. 161; State ex rel. Armontrout v. Smith, 353 Mo. 486, 182 S.W.2d 571; O'Hara v. State of New York, 112 N.Y. 146, 19 N.E. 659; U.S. v. Heinszen, 206 U.S. 370, 27 S.Ct. 742, 51 L.Ed. 1098. (4) The State of Missouri has further ratified appellant's contract by the very act of the State in accepting appellant's services and the benefits derived therefrom. Carr, Auditor, v. State of Indiana, 127 Ind. 204, 26 N.E. 778, 22 Am. St. Rep. 624, 11 L.R.A. 370; Hydraulic Race Co. v. Greene, 245 N.Y.S. 444, 230 A.D. 374, 178 N.E. 786; People ex rel. Chatterton v. Secretary of State, 58 Ill. 90. (5) The Legislature by the enactment of Sec. 5985a, R.S. 1939 (Laws, 1941, page 396, Section 1), in effect appropriated that portion of the escheat fund necessary to pay appellant. City of Montpelier v. Gates, 106 Vt. 116, 170 A. 473; McConnell v. Gallet, State Auditor, 51 Idaho 386, 6 P.2d 143; State ex rel. v. District Court, 92 Mont. 587, 19 P.2d 226; California Toll Bridge Authority v. Kelly, 218 Cal. 7, 21 P.2d 425; People ex rel. McCauley v. Brooks, 16 Cal. 11. (6) By escheating the undistributed fund to the State of Missouri and subjecting it to claims filed in the Circuit Court of Cole County, the Legislature re-established the inherent equity powers of that court over the fund to pass upon such claims and this appellant's equitable lien against the fund (the enforcement of which had been theretofore impeded by the operation of the insurance code as decided by this court in Aetna v. O'Malley) became and now is enforcible in this equity proceeding. 17 C.J.S., p. 667, sec. 278, Subject C; Kusnetzky v. Old Colony Ins. Co., 281 S.W. 47; State ex rel. American Surety Co. v. Haid, 325 Mo. 949, 30 S.W.2d 100; Chesnutt v. Schwartz, 293 Ill. 414, 12 N.E. 912; Harris v. Runnells, 53 U.S. 79; Winton v. Amos, 255 U.S. 373, 65 L.Ed. 685; New York Ry. Co. v. Gray, 239 U.S. 583, 60 L.Ed. 451; 5 Am. Jur., 367, sec. 178; Aetna v. O'Malley, 343 Mo. 1232, 124 S.W.2d 1164. (7) Secs. 5789, 5795-8 and 5985, R.S. 1939, as applied to appellant to prevent his recovery under his employment contract are unconstitutional and void as impairing the obligation of his contract in violation of Article I, Section 10, Clause 1 of the Constitution of the United States and as being in violation of the due process and equal protection clauses of the Fourteenth Amendment to the Constitution of the United States. Nebbia v. New York, 291 U.S. 502, 54 S.Ct. 505, 78 L.Ed. 940; Weinberg v. Northern Pac. Ry. Co., 150 F.2d 645.
Swofford, Jackson & Shanklin, Hendren & Andrae, Charles M. Howell, Jr., and Dean Wood for appellants Floyd E. Jacobs and Grace L. Henderson, Administratrix De Bonis Non of Estate of Mitchell J. Henderson.
(1) The circuit court erred in sustaining defendants' motion to dismiss plaintiffs' amended petition: for the reason that said court does have jurisdiction over the subject matter and the relief sought therein, under the Escheat Act of 1941 Sec. 5985a, R.S. 1939, as amended in 1941 in Laws 1941, p. 397, Sec. 1. (2) The Escheat Act provides that "any person or corporation" may file a claim in said circuit court. Plaintiffs are persons and therefore can file a claim. Said remedy is not limited to policyholders, as defendants contend. Aetna Ins. Co. v. O'Malley, 343 Mo. 1232, 124 S.W.2d 1164; Sec. 645, R.S. 1939; Cooper v. Kansas City Pub. Serv. Co., 202 S.W.2d 42; In re Duren, 200 S.W.2d 343; Graves v. Little Tarkio Drain. Dist. No. 1, 345 Mo. 557, 134 S.W.2d 70; Cummins v. Kansas City Pub. Serv. Co., 334 Mo. 672, 66 S.W.2d 920. (3) Plaintiffs' amended petition presents a "claim" under said Escheat Act; and the said circuit court has jurisdiction to determine its merits. Prigg v. The Commonwealth of Pennsylvania, 16 Peters, 539, 10 L.Ed. 1060; 1 Bouvier's Law Dictionary (Rawle's Third Rev. Ed.), p. 501; 6 C.J., Attorney and Client, sec. 394, p. 782, No. 71; 21 C.J., Escheat, sec. 17, p. 856. (4) The Circuit Court of Cole County, Missouri, does have jurisdiction to grant relief to plaintiffs on their amended petition; under said Escheat Act, expressly providing for said relief. Sec. 5985a, R.S. 1939, as amended in 1941 in Laws 1941, p. 397, Sec. 1. (5) The circuit court erred in sustaining defendants' motion to dismiss plaintiffs' amended petition: for the reason that said petition does state a cause of action against the defendants. Sec. 5985a, R.S. 1939, as amended in 1941 in Laws 1941, p. 397, Sec. 1; Aetna Ins. Co. v. O'Malley, 343 Mo. 1232, 124 S.W.2d 1164; 21 C.J., Escheat, sec. 17, p. 856. (6) This court has decided that plaintiff counsel and his co-counsel were lawfully employed by the State to render the services on behalf of the State, that created said fund; for which he now seeks compensation. Aetna Ins Co. v. O'Malley, 343 Mo. 1232, 124 S.W.2d 1164. (7) Sec. 13337, R.S. 1939, applies to establish a lien on said fund in favor of the plaintiffs, now that the fund belongs to the State, subject to claims; since said fund represents the proceeds of the Restitution Case, which plaintiff counsel was employed to obtain for the State. State ex rel. Anderson v. Roehrig, 8 S.W.2d 998. (8) Because the fund is under the control of the Circuit Court of Cole County which is the very court where the fund was created in the said Restitution Case, by plaintiff counsel and his co-counsel, that court should recognize an equitable ownership or property right in said fund by said counsel for his compensation. 6 C.J., Attorney and Client, sec. 394, p. 782, No. 71. (9) After said fund was created by the services of plaintiff counsel and his co-counsel, and at the time it did go to the State on August 9, 1946, under said Escheat Act, the lien or charge of said plaintiff counsel attached in equity; just as in any other case of after-acquired property embraced in an agreement giving rise to a lien. 37 C.J., Liens, sec. 32, pp. 324-5. (10) When the State Legislature enacted the Escheat Act of 1941 and the State Treasurer received thereunder the fund, subject to claims, on August 9, 1946, there was a ratification of the provision in the contract of lawful employment of plaintiff counsel by the State, that his services on behalf of the State were to be paid out of the fund; notwithstanding that said payment was to be made by the Superintendent of Insurance out of said fund while it belonged to the policyholders, by the terms of said contract thereafter held illegal in such respect only. Aetna Ins. Co. v. O'Malley, 343 Mo. 1232, 124 S.W.2d 1164; State ex rel. Armontrout v. Smith, 353 Mo. 486, 182 S.W.2d 571. (11) Since the State has consented to be sued as the adversary party in said Escheat Act, and has provided the forum for claims to be paid out of the fund, the State is in court subject to the principles of law that determine the obligations of private persons, as to that fund. Hydaulic Race Co. v. Greene, 245 N.Y.S. 444; Carr, Auditor, v. State of Indiana, 26 N.E. 778, 11 L.R.A. 370. (12) Said contract of employment of plaintiff counsel by the State may now be carried out under said act, because it is a lawful contract for lawful services; and its illegal provision for payment by the Superintendent of Insurance of plaintiff counsel's compensation out of the fund while said fund belonged to the policyholders, is but incidental to the fundamental intent in the contract, that he be paid for his services out of the fund; which, it was understood at the time of contracting, was eventually to go, and did go under said act, to the State by escheat. 5 Am. Jur., Attorneys at Law, sec. 178, p. 367; 2 L.R.A. (N.S.) 261. (13) The State would be unjustly...
To continue reading
Request your trial