Zach v. Fidelity & Casualty Company of New York
| Decision Date | 31 December 1923 |
| Docket Number | 23523 |
| Citation | 257 S.W. 124,302 Mo. 1 |
| Parties | BLANCHE G. ZACH v. FIDELITY & CASUALTY COMPANY OF NEW YORK, Appellant |
| Court | Missouri Supreme Court |
Appeal from St. Louis City Circuit Court; Hon. Charles W Rutledge, Judge.
Transferred to St. Louis Court of Appeals
Jones Hocker, Sullivan & Angert for appellant.
The refusal of the court below to admit in evidence, and to apply, the law of Massachusetts to the policy sued on, a Massachusetts contract, (1) was a denial of full faith and credit to the public acts, records and judicial proceedings of the State of Massachusetts, in contravention of Section 1 of Article IV of the Constitution of the United States, and (2) deprived appellant of its property without due process of law, contrary to and in violation of the Fourteenth Amendment to the Constitution of the United States. Green v Royal Arcanum, 237 U.S. 531; New York Life Ins. Co. v. Head, 234 U.S. 149.
Watts, Gentry & Lee for respondent.
(1) Since there is no constitutional question whatever involved in this case this court has no jurisdiction to determine the case, and the proper order will be to transfer it to the St. Louis Court of Appeals, inasmuch as the amount of the judgment is only $ 7500. There is a total failure of any proof tending to show that the last renewal of Zach's accident policy occurred in the State of Massachusetts, and no such presumption or inference exists. Therefore, our Missouri courts will apply to the wording of the policy the construction of the common law as construed in Missouri. That being true, all authorities as to the law of Massachusetts being decisive of cases based on contracts made in that State become wholly immaterial, and there can be no question in the case with reference to failure to give full faith and credit to the decisions of the courts of Massachusetts, or depriving defendant of its property without due process of law by such failure. (2) A mere "colorable" constitutional question will not give this court jurisdiction of a case. There must be a constitutional question that is one of substance, not merely colorable. Lohmeyer v. Cordage Co., 214 Mo. 691; Huckshold v. Rys. Co., 220 S.W. 852; Lovelace v. Met. St. Ry. Co., 231 S.W. 616; Stegall v. Am. Pigment & Chem. Co., 263 Mo. 723; Smithsonian Institute v. St. John, 214 U.S. 29; Banhazer v. N. Y. Life Ins. Co., 178 U.S. 402; Eastern B. & L. Assn. v. Williamson, 189 U.S. 122; Weisberg v. Boatmen's Bank, 245 S.W. 1053; Cross Lake Club v. Louisiana, 224 U.S. 632; Kryger v. Wilson, 242 U.S. 171; Carey v. Schmalz, 221 Mo. 132; Kettelhade v. Car Co., 243 Mo. 412.
This is an action on a policy of insurance issued by defendant to Max W. Zach. The original policy was dated December 15, 1909. In accordance with its terms defendant insured Zach in the principal sum of $ 7500 against bodily injury sustained during the term of one year from its date, through accidental means and resulting directly, independently and exclusively of all other causes, in death. The policy contained no express provision for its renewal, but it was treated by both the company and the assured as renewable annually upon payment in advance of the stipulated premium, and by virtue of such renewals was in force at the date of Zach's death.
Defendant is, and at all the times herein referred to was, a New York corporation engaged in writing life and accident insurance, and licensed to transact its business in the State of Missouri. At the time of the issuance of the policy Zach was a citizen of this State and resided in the city of St. Louis. Soon afterward he moved to Roxbury, Massachusetts, which continued to be his place of domicile until his death. However, he spent a portion of each year -- all the winter months from fall to spring -- in St. Louis, where he conducted an orchestra and engaged in other musical activities. He died there while so employed, February 3, 1921.
In the witnessing clause of the original policy immediately preceding the signatures of defendant's president and secretary, this language is found: "but the policy shall not be binding upon the company until countersigned by a duly authorized representative of the company." Immediately following the signatures of defendant's executive officers, this appears:
Unless the foregoing notation constituted evidence of where the policy was countersigned, there was none.
In the schedule of warranties annexed to the policy and by reference made a part thereof, the following statement of the assured is found:
Following the statements of the assured, denominated warranties, this language occurs:
"This policy is dated the 15th day of December, 1909, at noon, standard time at the place of the assured's address written above."
On December 15, 1915, a rider was attached to the policy, of which the following is a copy:
Max W. Zach, Assured.
"Witness J. J. M."
The evidence discloses in no way where the renewals were made, or the terms or conditions, if any, upon which they were made. The renewal receipts, if any, were not offered in evidence, nor were they in any way referred to therein.
With respect to the cause of Zach's death the petition alleged:
"Plaintiff further states that on or about the 19th day of January 1921, in the city of St. Louis, in the office of a dentist in the Metropolitan Building, in said city, to which dentist the said Max W. Zach had gone for the purpose of having a tooth extracted, the said Max W. Zach sustained a bodily injury through accidental means, to-wit, at said time, by reason of the extraction of said tooth by said dentist, an accidental and unavoidable injury was inflicted upon the tissues adjacent to said tooth in the extraction thereof, consisting of such laceration and tearing of said tissues as is the usual result of the pulling of such a tooth from its socket in the usual and customary manner by a skilled dentist, such laceration and tearing...
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