*1 of the Case. Statement METTLER. v. LIFE MUTUAL ASSOCIATION FIDELITY FOR THE STATES OF THE UNITED TO THE COURT ERROR CIRCUIT "TEXAS. DISTRICT OF NORTHERN Argued 5,May January 31, 1902. 1902. No. 165. Decided separately from of life health The classification companies, re- and mutual benefit and fire, inland insurance marine .through doing lodges and mutual benefit as- organizations lief insurance, sociations, respect is Texas in of not so made the State of arbitrary and of as to be obnoxious to constitu- destitute reasonable basis (cid:127). objection. tional prove policy necessary on it is not the fact an action a life insurance In party in -beyond for the a reasonable doubt. A verdict whose of death preponderates will be weight of sustained. favor evidence may disappearance of from under circumstances inference «.rise .death a of life. inconsistent with continuation family on of an assured that he is dead not admissible The belief independent policy on his trial of an action on of insurance life evidence, death, of such the entertainment belief of his of fact ' case, And, innocence of may proven tending show fraud. presumed, entire cannot be record was admitted the evidence which (cid:127) except considered, whatever on the from had influence verdict have admissible. point in which it was of view requires particular objection reversible error or urged constituted No mention. Jennie M. the Dis- Mettler Tills action brought was an 1897, December re- Texas,. of trict Court County, Dallas the United States for of to the Circuit Court Northern moved Mutual Life Insurance Texas, Fidelity District against recoyer on three of in- policies Association Philadelphia,-, Hunter, A. to his life one payable surance upon William Mettler, M. each Jennie sister, widowed stipulating pay- in case of Hunter’s death. policies ment $5000 at time of and Hunter their October, paid dated on each sum $32.55 policy, agreed delivery on the 28th thereafter, like sum semi-annually day each LIFE MUT. ASSN. METTLER. of tlie Case. Statement and. of ten October, months April period years October 28, the commencement of the trial defendant admitted
At *2 of of to the death all matters all insured, relating proof bé¿ and that the formal are sufficient, only proofs, question of whether or not involved is the W. tried and A. claimed and whether Hunter is dead as he1 plaintiff’s petition, therein.” manner and form died alleged Hunter left tended to show that Mrs. The evidence Mettler’s his December, on the third of house intention announcing of mak- Mentone, County, purpose Loving go of in that of a section land county ing proof belonging him, for three had he left and which he with years; a occupied two of a and with horses, team consisting wagon hay, provisions, and utensils, a and that outfit, he cooking gun; camping ex: a to be absent week or ten at a days, later pected intending; returned Mentone, after from back to having period, go he before handed to a shortly a place; leaving lawyer sealed in a which of he asked papers large envelope, package in vault, should be a and which kept contained the packages and insurance; of that Mrs. Mettler did policies not know that had been taken out in her name. policies The evidence further tended to show that Mrs. Mettler, not of her brother for fifteen hearing anything after his de- days twice to ascertain sent whether he had parture, but arrived, he had a not; found that then went searching party out; the trail of followed and found it and party wagon, hay, pro- etc., abandoned visions, harnesses, where Hunter had camped the banks the Pecos Diver, near some' miles distant a bed on the which Pecos; some ground, one had in, cook- slept remains of a a utensils; fire, skillet in which ing meat had been bread, some sóme tomatoes fried, there; were and a was gun wheel. One of the leaning against wagon horses was lying been tied to had a dead; bush with an inch mesquite rope, and had but could struggled get not reach hay, it; were the other there which horse, signs elsewhere seen with about a on its neck. wandering rope identi- Footprints, Mrs. Mettler as fied those of her found brother, were lead- of the Case.
Statement were buckets two water to the river, returning; ing the river; tracks were at the of the foot near;' edge some a feet, of the one and there were marks the slipping in the bank.1 broken root rnesquite searching party county County, who headed the 1The clerk of lieeves respect of the morning of testified left Pecos on the December tongue point standing wagon with the thus: Vas camp abandoned The harness two ing to the little down river. southwest rope found; buckets, a'piece with tied wooden water horses was two wagon, bail; right wagon, feet from the off to the about twelve rope horse, rnesquite feet to a bush with a twelve a dead tied abfcut pallet spring wagon long. right On the side of the made down. upside down, wagon wagon off and turned had been taken seat tarpaulin; on the lengthwise. The sheet was a this was laid laid sheet spread length, resting wagon one end ground full seat. out with lengthwise lay heavy were doubled two cotton comforts One or top Lengthwise wagon and on wagon sheet the end on the seat. size, up wagon had spread sheet been drawn comforts out full two *3 that, away south of about four feet and To the left over the entire bed. fire, a little and thei'e was a skillet there had been edge, the was where built, setting right the fire had been as if where The skillet and lid. was against fire, laying lid it. The skillet looked in the middle of the wagon, the front wheel of the it in. behind like had been cooked Just axle, wagon In the a x'ifle. were leaning against the was Winchester two flour, bread, goods, light canned some hay some and some bales of alfalfa think; pipe, may be, wagon I a joints and stove the of stove several and bread, untied, had been and there things. The was a other such and few of paper. I first saw the bed the centre the bed in the some of it When still it; thought much shape so like it we there of a man in looked had the up, George we'got right and when Mansfield started to until a man in it it, me, up dropped turned and looked at his face as he and the cover raise up; be, him to that if anything and I told raise it there was could as white him, up. ap and he raised the cover The it, not hurt man in it would a it; just shape there was the pearance was as I have described of of the bed lay bed; print of there, had the him was in if a man bed. I a man piece rope tied in the bail ten buckets had a or twelve feet both think around; two or three inches the buckets had long, on the the and bottom up, sand; prints and dried and a little having there'i red of water been wagon; the they dry. dead horse could reach it had were The both rope, appeared an and it the rnesquite bush with inch been tied ato hay get wagon; gone he struggling to had out horse had been rope; there trail beat around as far as he could with considerable hay wagon where tixe get was. The ti'ail was trying to where he was deep. wagon had been other stock There about the two or thx-ee inches there, sign another horse camp; we trailed there was the LIFE METTLER. ASSN. MOT. Case. Statement river; evidence quicksands There was conflicting character. Two of defend- its dangerous depth; rapidity; time show that some testimony tending ant’s witnesses gave had seen a whom death they they after the alleged person Hunter identified as by photographs.
In of the examination the course plaintiff following occurred: “ ‘Q. what is the State family— general reputation and sisters—-as to the death of- father, brothers, your your W. A. Hunter.’ To which defendant because brother, objected it is cannot (2) family hearsay; reputation incompetent where it is 1500 miles death, establish ; prove especially away for no when (3) competent purpose, especially reputa tion has been since the institution this cause of established £ the court overruled and said: I action, think objection ' is one of to be the evidence. It is a question weight given or not whether belief say tends jury family his death.’ To which then and there ruling,defendant prove for the reasons stated in the and the witness excepted objection, £ testified: father, brothers, sisters all thereupon My believe away wagon horse from the wagon and back to the a at a about half dozen places. hay I think one tramped bale of had down; been eaten and there op great a wagofi deal trash the back end of the laying on the ground.” tracing then witness described the of a tracks man “to the edge of the river wagon;” and back to the footprints then later other going point toward bank higher up.” river at a We followed right up edge of the bank and they followed that until went over a slant; top little of the river bank sloping; was little these two foot- prints, two, standing right slant, last on that left foot little behind right. footprints had been half facing about the river. The left *4 slipped; foot seemed to have a turned and print little there, of it was slipped; and just showed that it had just and in front and below where dropped perpendicular this bank mesquite off there awas root that had part broken off and a sticking been of it was ground. out of the We could see none of going away these tracks were river; back and from the we looked go to determine whether away from it they)did and we could not ' any going away see from there.” Mettler, Mrs. being discovery, informed of the camp went to the with witness, 29, .this December and footprints she identified the and testified to the same effect. Statement Case. Witness further over the testified, be dead.’ brother my which defendant, made were over objections by same objections and and there defend court, excepted ruled then £ believed he was in the drowned Pecos ant, the family and that out belief has'existed West, River, family them about it.’ The was handed since I wrote witness here ever ad she as written herself and letter, recognized dated think to her December 1896. £I I father, dressed I came back from the where wrote day camp, £ brother’s I we found outfit.’ my camping reported my I know wrote some let was dead. he to and received brother best existed between ters from the relations family. very be father and brother. Never was my any disagreement them. The between tvveen closest existed very friendship ” me; brother and and love.’ my brotherly sisterly introduced the W. A. Hunter, Sr., Plaintiff depositions his E. Hunter, father of the Charles insured; brother; Ohio. The father Homer, all tes- sisters, residing five and Jr., Homer Hunter, W. A. lived at tified that plaintiff in 1885 that a ; went to Texas family until correspondence they until the fall of with both of them had been up kept regularly her; still kept up when he disappeared, ,that his affectionate,,; happy relationship family he the confidence of and that possessed habits were son’s good, “he seemed con- friends; of his thoroughly his family know of no reason cause and I any change with life, tented when I tell member exactly coiild not in his disposition. letter from last said William at Homer received family his I before timé a short Hunter, Jr., disappearance. A. M. about the Mettler, of him Jennie time heard through last I -Mentone, Texas, and he was be- living:at disappeared, he lieve.” to the W. witness, A. propounded following question
. other members Sr., family: Hunter, what is the state Q. If know, general reputation you is- whether said William Hunter A. the family repute do know general alive ? you repute How dead If ? what know, he is dead alive to whether you family *5 FID. MUT. LIFE ASSN. ». METTLER.
Statement of the Case. is the as to repute what has family become of general William A. said Hunter? As to the who do ‘family,’ you ” mean ? To this and the answer thereto each witness, de- fendant then and there which was objected, overruled, defendant The answer was: excepted. “ A. That the is that general repute William A. family is Jr., dead. He is Hunter, supposed family have drowned the Pecos River; belief. is general By ’ ‘ is meant the father and family the brothers and sisters of William A. Hunter, Jr.” Each the other witnesses testified substance as their a,nd
father, the same made to their objection testimony, same had and The ruling father- exception preserved. testified in answer to cross interrogatories propounded by de-. that he fendant, never offered took reward or any any steps find W. A. either after he Hunter, Jr., alive, dead or heard of his that he made no disappearance; concerning inquiry said W. A. Hunter, save his Mrs. Jr., Mett- through daughter, did that he not ler; have the Pecos River seined, made no search either of the or river to find him elsewhere, effort any his Newark, body. Licking Ohio, is County, sixteen miles from witness’s home.' When witness saw the articles published in the Newark Advocate about the of W. disappearance A. did Hunter, Jr., he not there go see editor said paper. The town not connected rail with witness’sresidence. The same facts as to failure to offer reward or to make search any for W. Á. Hunter, Jr., were inquiry elicited cross inter- E. Charles Hunter, rogatories brother of the plaintiff W. A. Jr.” Hunter, jury charged, among things: “Reputation
his (insured’s) his family father, sisters and part brothers of his death is evidence proper your consideration, one.” opinion were stated to policies be made in consideration of writ- ten of Hunter application therefor, and a copy applica- tion was attached. Hunter therein that the' truthful- agreed ness of the statements above made or contained, by whomsoever TERM, OCTOBER'
Statement of the Case. is material is the written, risk, sole basis of the coh- ” “ with the association tract said I will not ; without the *6 consent of the in written president engage any occupation more hazardous than that above and employment mentioned; concealment, if or untrue that statement, or answer be made then the contained.herein, policy insurance issued hereon this shall be and contract null ipso and all void, facto hereon shall forfeited to said moneys paid association.” And showed, that Hunter applications among things, jin “ as to his said: That answering questions occupation my is real estate was book- present occupation farming, prior keeping.”
There was evidence that Hunter had a section of occupied land for three that he was in Loving County years; the real estate and business that he ; farming corn, planted grain, pota- and so .on; was toes, land farming experimental, Mettler, that he and Mr. irrigation; then deceased, requiring been connected an had and the con- irrigation company of a and that ditch; he struction resided at Mentone, Loving “ where he in the real estate and busi- engaged County, farming after and looked their businessin ness, irrigation Loving County.” he was 1888 and 1889, That and two bookkeeping years, dep- evidence in clerk, introduced reference to etc. Defendant uty lands entered in of Hunter’s claims forfeitures Febru- public of a Hunter 1897; testimony photographer ary, months one summer two three at his employ Fort in 1896. Defendant’s Worth, he who thought agent he had- known Hunter testified that since took application he Hunter books; at which time was stated keeping that he was in the real estate business and farm- he applied wh^n about witness had a talk with him and that mat- irrigation ing, with his connection ters farming. for defendant that when witness testified Hunter made This “ : That he and his he said brother-in-law had application scheme and had into an deal of bought irrigation good
gotten and owed a deal land the land, Pecos Yalley good money afterwards died, had he if and his brother-in-law thought, would lose his sister what had die, he should happen they LIFE MUT. ASSN. METTLER. Court,
Opinion of the For reason he some so paid. thought taking insurance, could The land out she event his death.” the statute of Texas constitutionality twelve- allowing cent and reasonable fees was denied per damages attorneys’ in issue defendant. put duly The verdict was for $15,000 plaintiff principal; $2250 at interest rate six from December 2d, 1897, to per'cent 2d, June the same 1900; $5175, twelve cent dam- being per on the amount of $15,000 and interest thereon ages at six per cent; as reasonable fees.” Plaintiff $2500 remitted attorney’s the sum of of said on the $5175, item of leaving $3375 $1800 twelve cent on the amount of-the per loss,” damages, judg- ment was entered: thereupon
The writ of error was allowed from this court, directly a motion to dismiss for want of the con- made, jurisdiction sideration of which was to the merits. postponed
Mr. John G. Johnson for in error. plaintiff Mr. O. A. Culbersonfor defendant in error.
Mr. Chief delivered the opinion Justice Fuller court. Inasmuch as the of the statute of validity Texas authorizing the of recovery fees for damages attorneys’ failure life and health insurance compani.es losses was seasonably drawn in defendant below question by in contraven- being tion of the of th'e United States, we think the case Constitution comes within Loeb v. U. Trustees, 179 S. Township Columbia 472; American Sugar Refining v. New Orleans, 181 Company U. S. and that the writ of error be maintained. The may motion to dismiss is, therefore, overruled.
Four propositions are-relied on as of grounds reversal, which we will consider in the reverse order in which are stated they in the brief for plaintiff in.error. “I. The court erred in not the to find charging a verdict jury in favor of the defendant because of the failure to offer .suffi- cient evidence from which an inference of Hunter’s death could be drawn.” TERM, OCTOBER'
Opinion the Court. ol In the evidence was our sufficient in- the opinion justify was drowned the ference that Hunter Pecos River, Decem- ber and the court below refused 4, 1896, properly to peremp- instruct the find for defendant. torily jury Hunter’s was a The of death to be question fact on all relevant facts and determined circumstances disclosed by the evidence. evidence tended to show that was last he 3d, seen alive on December when he from his sister parted with Mentone, started the intention of in a few returning did arrive, He nor return, but He days. disappeared. on the banks Pecos camped River; abandoned harnesses and the starved wagon, gun, horse, ashes of fire, used utensils, the bed cooking fragments food, with its bore that he imprint sleeper, cooked, testimony that he went no farther. The foot- there, ate, and slept but not brink, water river’s going returning, steps root, the fractured mark of slipping, flowing buckets, have and the fact that what might happened, indicated stream, from thereafter, heard his rela- although nor he not seen intimate and he had al- cordial, family with his tions so that them, one or more a correspondence ways up kept to hear him from unless his life have been likely would them or its habitual course been suddenly terminated had abruptly of fatal accident inference reasonable. rendered changed, forth the court not set general charge record does While this instruction others, given: in full, but, among for seven absence, years, death presumed may if from him, news would where from, living, heard one not of seven had, years yet period during have been probably *8 and runs, life at end of continued the which the presumption be shortened ceases, that life may it is of which presumed connected with the dis circumstances and of such facts proof life is the subject whose the inquiry, person appearance his habits and apd with customs of connected circumstances reason and would test of experience, submitted life, as, the evidence show to satisfaction by preponderance your dead.” that the person of this instruction, to the giving
Defendant excepted u. METTLER. 317' LIFE ASSN. MUT. Court, Opinion of the “ the to instruct that circumstances court proven requested and moral fact that to a reasonable exclude, certainty, must each fact in chain of still facts is living, such person of the is be inferred must be the death from which party evidence same weight proved by competent if in each one were the main fact issue, of evidence force with each other and must be consistent facts all the proven death of in that issue, is, with main facts consistent party.” did not in the one and other err court refusing giving not nec- a criminal and it was case,
instruction. This a reasonable death' be that th'e should beyond proven essary of evidence side the pre- whose weight doubt. party “ to a moral the verdict. was entitled to ponderated P.roof ” with reasonable an beyond is equivalent phrase certainty 118 Mass. J., Costley, C. Commonwealth doubt.” Gray, the whole evidence on agrees it if the is sufficient In civil cases it adduced is prove, with and supports hypothesis cases it exclude must every but in criminal hypothesis held It has been of the that of some party. but guilt when a criminal act is reasonable cases rule of alleged is this is not such act, doubt applicable establishing Greenleaf, 13a, Ev. (loth ed.) a case. note. § also instructed the If The court from the jury follows: case this should come to the conclusion that you evidence been absent continuously has since December Hunter from his heard relatives and friends, should without being at “Ab- verdict.” have düe weight you your arriving cannot establish the death of for the law Hunter, alone sence alive at an individual shown health presumes continues his While the death time of live. disappearance from alone, not to be it is a Hunter absence presumed yet taken into which should be with all consideration circumstance of life or case, evidence conclusion the other the facts and at all circumstances, arrived including death absence.” his continued and it is now defendant there excepted, argued
To did not call the court the attention because error *9 OCTOBER’TERM, 1901. Opinion of the Court. contention that defendant’s Hunter’s absence jury continued be attributed to the to obtain the insurance desire might money. it that defendant But nowhere the court to appears requested it the instruction that modify particular, given correct. were left to infer death from the mere fact of jury it-, told that not in but that was
disappearance, specifically and that sufficient, self facts and must be circumstances .all considered. Defendant asked the court to this instruction : If give you believe from the evidence that William A. Hunter, has been Jr., from seen heard one at time since his by any disappear- will find ance, for the defendant.” you This the court refused, instruction : The gave evidence of following witnesses is also before to show that William you A. tending Hunter has been seen on two occasions and at two since the date of places his on December alleged disappearance You should 18.96. consider this evidence relation to carefully his been .having seen since the date of his and if be- alleged disappearance, you lieve from-the that evidence he was seen who witnesses have testified to this, then, course, it would be your duty find for the defendant.” that
There was some evidence Hunter had been seen, that he had otherwise none been heard from. The request defendant was the instruction rejected, rightly given The criticism have sufficient. jury may supposed Avere instructed that must be satisfied that they he they had seen both witnesses, been two occasions, is Avithout merit. It Avas to have misunderstood impossible what learned the Circuit Court intended. If, as judge.of matter of Hunter was seen whether once or fact, alive,, tAvice, then, of course he did not die as contended by plaintiff.
It is further the court erred argued not instructing that££ defendant, unless jury requested believe jury evidence that William A. Hunter, Jr.,'when last' seen was in a such as that is more position peril, probable he then and there lost his life than that he extricated himself from must find for alive, perilous position you the defendant.” MUT. LIFE ASSN. METTLER.
Opinion of Court. Such, was uncalled to mislead. an instruction calculated that Hunter no evidence was in a peril There position *10 The evidence tend show that did, indeed, last seen. when into the with and so came in contact a river, fell he probably was the there evidence depth, regarding specific peril, but the instruction river; and the rapidity quicksands in in it that a was assumed he.was seen peril objectionable afford for such a character as to the basis ous spec position his extrication. ulation as probabilities Mr. Justice Harlan 628, 634, S. In Davie v. 97 U. Briggs, “ absent within said : If evidence person, appears within the seven encountered some peril, specific years, came within of some immediate impending period range life, be destroy danger, might reasonably expected infer ceased court or that life before jury may expiration of the seven years.”
But it was not ruled that of death thereby inference might not arise from under disappearance circumstances inconsistent with a continuation of even life, to some though exposure par- ticular not shown, peril evidence indicated that Hunter came within the of immediate range danger. “ II. The court erred in not that if charging, requested, Hunter at time of making application insurance was not a and real farmer estate there could no agent, recovery.” “ This relates to the refusal to instruct that must be- jury lieve from the evidence that W. A. Hunter, at the Jr., time of for insurance to making application on which defendant, poli- cies of issued and are herein involved, was at the time he made both a application farmer real es- tate and unless agent, so you believe, will find for the de- you fendant.”
The entire not in the court is charge there record, to show that the nothing Hunter’s answer as to his subject not occupation covered it. Hunter did Again, say “ that he was a farmer and real estate hi's occu- agent,” “ when pation he made the real farm- estate application and the evidence of ing,” the truthfulness of that statement was so and the evidence plenary, from which to infer the contrary OCTOBER'
Opinion of the Court. think the refusal was on that that we was so justified slight, ground. statement the evi- occupation warranty,
Treating was behind his Hunter on the land dence-that payments and that forfeitures were entered County, February, Loving haye that he been with 1897, and may engaged photographer even in or three did not' months, for two summer of 1896, truth the substantial so faith of his answer as impugn good an instruction so worded. to demand III. The court erred of a testimony repute admitting family Hunter, concerning death, his and the manner thereof.”
Hunter had Mentone, his sister started for parted with the December intention within a week returning ten and did not come After he had been gone days ten days. his back,” two and did not come sister *11 then weeks and back not' who that Hunter had make reported inquiry, sent man and re- later sent A few days again, been to Mentone. she. out, went found The searching, party a similar ceived reply. Mettler then and Mrs. and reported,, the abandoned camp, at the condition of She described things herself. went and 29, This was December river. of the brink camp father she wrote her returned, she after 30, day December in the was drowned dead, her brother that it and about Ohio and sis- her brothers father, that testified she and River, Pecos what had because of she was so, that believed all ters, was the belief that this testified while written; they If this she furnished. testi- information family, based is difficult to see that it it admitted have been should mony fatal to verdict, be as to been could have so prejudicial of Met- the assertion' Mrs. than more it amounted nothing of that belief as the family and acceptance by tler’s belief their, be that the- cannot words, supposed other own. In it. to establish of the fact the evidence as tending jury regarded Mrs. Mettler’s belief to state when it only death purported concurrence. the family’s the entertainment of such of
Moreover, showing aspect if it had admissible, been was faith the evidence belief good v. FID. MUT. LIFE METTLER. 321 ASSN. Opinion Court. Hunter time. had at the suddenly
offered disappeared. proper but was not after the was made, prosecuted discovery Search The father was as camp. sharply interrogated of the deserted “ to make effort reward, to seine the river, to offer to failure And the brother Charles. The so was his body.” find him, or was disappearance the insurance company theory of Mrs. Mettler and the that the conduct was voluntary, was belief that he with the yet alive, was consistent family n was This to defraud a combination company. indicative entitled to their vtere by testifying repel inference family death, fact of it was mere As to the his death. conviction it was matter of fact as to belief matter of but opinion, .their is Reasonable of fraud. inquiry frequently innocence showing death to the inference of disappearance, a prerequisite no or effort was made effort, well but here inquiry of death belief' after because camp, discovery that belief time rendered it useless. Whether was lapse was such there belief was well founded jury, Insurance v. fact. New York was relevant Company Life v. 145 U. S. Wallace United States, Hillmon, 296; S.U. do not think the evidence was establish
But we competent under the circumstances of the case. To death, the fact In Pet. it was held illustrate: Scott v. Ratliffe, she told that of a Mr. Madison witness testimony admissible; and in 3 Wall. dead,” Green, Secrist it was said that death 744, 751, competent prove But these and similar rulings heirship reputation.” in connection with the other cases must taken expressions *12 of case no facts and circumstances. In this question particular on of or death as birth, marriage, bearing legitimacy, pedigree; of ancient events descent, of rights; past prior relationship; that nor was there was involved; any pretence to controversy, tradition, fact, evidence of or historical repu this was general If evi family. tation participated community on fact it would be of death evidence particular dence as such. and inadmissible .The which sought, recovery “ that: It is jury say was incorrect ruling VOL. clxxxv —21
322 Opinion the Court. of his tends to belief prove death,” whether not family although the learned judge .by qualified charging jury: “ on the in his of family his (insured’s) part Reputation father,- his death is and brothers of sisters, evidence for proper your not the of one.” consideration, opinion any But, the en- are of tire record we considered, that it opinion cannot be pre- sumed that the evidence aifected- the verdict injuriously if on defendant, all, and, at contrary, it-affirmatively that if it could have had influence appears any whatever, was from the of which view, rendered it solely point admissible. “ The statute of IV. Texas, directs life and health insurance who shall default in of their companies, payment poli- shall twelve cent cies, pay damages, per together reasona- fees, is in ble violation of the Constitution attorney’s of the United States.” The statute referred article 3071 of the Revised Stat- “ of Texas of which reads as In 1895,
utes follows: all cases and the life or health a loss occurs where insurance company fail to the same within the liable therefor shall time pay speci- made after demand such therefor, fied in the policy, company holder shall be liable to addition to pay policy, cent twelve on the loss, the amount of the amount damages per with all reasonable of such fees for loss, attorney’s together of such loss.” and collection prosecution if life or any Article health 3072 insurance provided off satisfy failed execution issued on company it within thirty final demand of days against judgment pay- insurance should the commissioner of declare the com- ment, to do null certificate and void. authority pany’s three of These articles sections Title chapter LVIII, and had forward from Insurance,” been the Revised brought arts. 2953, Statutes Title three, chapter Bill, And the Insurance.” same life in- provisions foreign surance those outside of incorporated State Texas were contained the first insurance general statute which was Texas, 2, Paschal’s passed May Dig. art. o. no
Under title to do permitted *13 323 LIFE METTLER. ASSN. MUT.
Opinion Of the Court. in Texas without first obtaining permit business with the law was of.insurance, commissioner compliance required be while could before granted, by permission to re- required the commissioner of article S|060 terms do in the in business State the certificate of voke authority for execution failed days any case thirty any company it on valid issued judgment. any against three embodied conditions many provisions chapter done. article 3061 which be business-was By permitted within to act the State it was made unlawful for any person busi- or otherwise for insurance company soliciting any agent do it from unless the had authority ness company procured or 3062 life health the commissioner. Article provided any to do business State should insurance company desiring a sworn to the commissioner as furnish statement prescribed, of its which article 3063 was to be accompanied' copy 306é or the law it. Article the com- charter creating required or fact on whom service an designate attorney pany agent had in article 3065 declared that no suit, be case might or Texas or life health insurance company incorporated any with should in Texas less other State transact business capital $100,000 than invested. 3066 Article insur- actually required ance other States to make such in Texas companies deposit of- as the laws their home Texas State required companies there, business and article that all 3067 doing provided foreign should $100,000 the state be- treasurer deposit fore in Texas; which doing article deposit, by towas be applied favor payment judgments ; article 3069 that it should be suf- policyholders provided if the ficient section 3066 made in deposit required any State. Article 3070 that suits be provided might brought where loss occurred or where county any policyholder resided. article made unlawful for
By life or' health any to take kind insurance of risks or issue any any poli- cies of those life or health, and the busi- except insurance. of life and health ness the State was forbidden to “ in conducted transacted anywise by any company,
Opinion oí tho Court. is- in this or other State concerned country, engaged inland or other marine, fire, *14 in the business of insurance.” 3075, 3077, 3078, 3079, 3074, 3076, 3080, 3083, Articles 3084 or inland insurance to fire marine, related companies. 3089 3082, 3086, 3087, Articles 3081, insurance applied companies generally. “ Article 3092 read: The of this shall in provisions chapter nowise to mutual benefit business in apply organizations doing or this State such as the councils, order of through lodges chosen of or kindred friends, honor, knights organizations.” Article 3096 read: this title shall be construed “Nothing-in to affect or mutual relief associations or- any way appty and chartered under the laws of ganized general incorporation or which are under laws of Texas, organized other which have no State, stock, whose relief funds are capital and sustained assessment made created members bjr upon with their several accordance by-laws of said associations ” oath to but an annual statement under ; regulations and the article con- of insurance required, department such benevolent refuse And cluded: should any organization annual as above it shall to make an report required, neglect conducted for an insurance its be deemed profit the laws officers and amenable governing companies.” from an act of 3,1889, was taken entitled Article 3092 April admission from other States of com- An act to provide on the business life cas- or associations carrying panies or natural on the assessment premium plan,” ualty to their do business conditions were affixed and certain right State, not mutual benefit which should apply organ- business councils. Laws, 1889, izations through lodges doing 98. p. from an act March 28, 1885, was taken
Article 3096 of. Title LIII the Revised Stat- three, which amended chapter thereto couched in similar an article utes of by adding Laws, terms. 1885, p. two laws were to their of 1895 these assigned
In revision insurance. Such under the title of place appropriate in- had been on life conditions which for many years imposed ASSN. o. METTLER. LIFE MOT. Opinion Oftlie Court. when the Texas business policy doing
surance But it is now contended case was issued. in this on sued United with the Constitution in conflict article 3071 be- laws, that it denies protection States, equal marine and fire, are not conditions imposed the same cause benefit and relief on mutual insurance companies; inland and mutual relief through lodges doing organizations the latter. more associations, particularly benevolent so, classification is is that the the contention words, In to be obnoxious to basis, 'of reasonable destitute so arbitrary, constitutional objection. v. Chowning, Insurance Company Union Central In Life held that the statute Texas Court of
Texas,
Supreme
fees
attorney’s
recovery
damages
in providing
Texag or of the Uni-
Constitution
violation
*15
rendered
This decision was
law.
a valid
and was
States,
ted
Statutes of
of the Bevised
1879
2953
but section
1894,
in May,
1895,.
of the Bevised Statutes of
as section 3071
the same
in
1889,
and
were
1885,
3,
28,
April
of March
the acts
and
forward as sections
brought
were
which
force,
subsequently
held that
Court
as all
3096.
Supreme
corpora-
3092 and
classes named were
alike
the
affected
the
in
by
tions embraced
the
of the laws;
did not
deny
equal protection
provision,
that the twelve
cént was
said
as dam-
the court
per
and
given
the contract
a failure
and
for
comply
by payment,
ages
allowed as
were
for the
fees
costs
the
compensation
attorney’s
The court was further
the debt.'
opinion
of collecting
cent was a
for failure to
if the twelve per
penalty
even
no
of the
constitution of Texas
when
there
due,
provision
and that it was'for the
forbade such
which
legislation,
legislature
the
was so
enforce-
when
interested
to determine
public
contracts as to
enforcement
ment of
justify
by penalties.
v.
632,
39
Allibone,
&c.
S. W.
In Fidelity
Company
Rep.
Texas,
Court Civil
by
this ruling'
Appeals
repeated
Court in
&c.
Fidelity
affirmed
Supreme
Company
the con
Both these courts held that
Orient v. 172 S. 557; Company Daggs, 327 LIFE ASSN.
FID. MÜT. v. METTLER. Opinion of the Court. Texas, v. U. S. New Pierce Oil York Company 28; Life S. are in Cravens,
Insurance v. 178 U. Company point are decisive. S. a section of Warren,
In Insurance U. Company no answer Statutes Ohio effect the Revised provided should made applicant policy any interrogatory on’ a trial un- or be used evidence bar the recovery right answer was false that such wilfully less was clearly proved and induced that it was material, and was made, fraudulently such answer to issue'the and that company policy, that the moreover, and, would have been used; policy of the fraud of the had no falsity agent knowledge to life of such and this answer; applicable provision only of that act was insurance The constitutionality companies. this court affirmed Ohio, Court of upheld by Supreme used Waters- its language judgment, opinion A Pierce Oil v. Texas was corporation Company quoted: are its and none of law, original. creature powers act has made them, are what the They precisely incorporating and can be exerted in the manner which only that act author- n izes. In other the State words, prescribes of a purposes and the means corporation executing those'purposes. and means are within the purposes State’s control. This is true as to domestic It corporations. has even a broader meaning And we foreign corporations.” added : It was for the legis- lature of Ohio to define the public State re- policy of life and to spect insurance, impose conditions on the transaction life within the State as deemed best. We do not perceive any arbitrary classification or unlawful discrimination in this legislation, but, at all we events, cannot the Federal say Constitution has been violated in the exercise in this State its regard by undoubted over power corporations.”
Our conclusion is that the record shows no reversible error, is, judgment therefore,
Affirmed. Me. Justice Beewee concurred in the judgment. *17 TERM,
328 1901. Brown,
Justices Harlan dissenting. whom (with concurred Mr. Justice Harlan Mr. Justice Brown) dissenting.
I cannot assent to that of the part of the court re- opinion to the lating statute of constitutionality Texas 1895 which that a life or health provides insurance company, failing a loss within the time pay specified de- after policy, shall be therefor, mand liable, addition to the amount of the loss, the holder of the policy twelve cent per damages on the amount of such loss, together all reasonable attor- fees for the ney’s prosecution and collection of such loss.” of the operation statute is well illustrated the present ; case for, the verdict of the for as $15,000 jury principal, as interest, $2250 $5175 twelve cent which per (of damages, the plaintiff remitted $3375), $2500 special attorney’s for the fees plaintiff.
The rule embodied in the statute is made applicable fire or marine insurance or to companies, any otheiy n or in' corporations business Texas. Does not doing the/State that statute and health deny do-' companies, to.life limits, its within laws' equal protection ing Fourteenth Amendment the Consti- is secured by ' States? tution of the'United this must be It to me answered in the seems had whatever be if affirmative an regard any principles Colorado & Santa Fé nounced in v. Ellis, Gulf, Railway 150, 153, U. S. before us statute, In that'case we had declaring any bona a valid claim for in Texas
person having personal fide labor for services rendered or over- done, damages, for. killed or claims for stock freight, injured by charges train of such claim for railway any company, provided be stock killed or shall the com- injured agent presented in- nearest where such stock killed or pany point railroad a railroad in. jured, against any corporation operating and the amount of such claim does not exceed State, $50, his same, affidavit, verified may present payment with, station of such filing agent corporation, by LIFE ASSN. METTLER. MUT. Brown, dissenting. Justices Hablan . where suit instituted any county may
corporation *18 such at the after and days if, expiration thirty presen- same, not he imme- claim has been or satisfied, may paid tation, such if shall thereon in the he court; suit institute proper diately full obtain claim, judgment his establish finally to such for corporation as thereof, payment amount presented the suit have been court to which may in such court, any the to recover amount such entitled he be shall appealed, thereto all reasonable in addition mid suit, all costs claim in case, his he has an employed attorney s attorney1 fees, provided court the awarded assessed $10, by to be not to exceed the issue.” the jury trying to recover action was force,
That statute an brought being was a There killed for a colt the railway company. by $50 and a claimed, for the amount against judgment added, in favor fee attorney’s plaintiff $10 special as the' above statute. required in that
The contention case statute made an discrimination railroad embraced arbitrary against it as to within its provisions bring prohibition court Amendment. That view was This Fourteenth sustained. “ said : It a statute railroad is.simply imposing penalty upon failure to debts. individuals certain No corporations thus and no are other The act punished, corporations. singlés like out a certain class of debtors and when for them, punishes it no not others. are treated punishes delinquencies They liti- other debtors. cannot the courts as to They appeal under like conditions and with If like litiga- gants protection. mulcted in the tion terminates to them are adversely they if terminates fees of the it successful attorney’s plaintiff; sufficient no is no their recover fees. It favor, they attorney’s answer are when they adjudged say punished only do not the courts enter upon wrong. They equal do not must if ; terms. fees they They pay attorney’s wrong if if while recover recover their adversaries right any right; if therefore, In the suits, and pay nothing wrong. riot are are and are discriminated
they they against; parties law. others. do before the not stand treated They equal Brown, dissenting. Justices Harlan do not receive its All is obvious protection. They equal from a mere of the statute.” to the inspection Four- Eeferring teenth Amendment the court said: Constitution, and securities rights guaranteed persons instrument cannot be to these artificial disregarded entities respect called more can than be in corporations any they indi- respect viduals who are the owners of the equitable property belonging to such A State has no more corporations. to cor- power deny porations laws than it has to equal protection individ- ual citizens.” can Neither it be sustained as Again: a proper means of of small debts and enforcing payment preventing them, unnecessary litigation because respect does in all cases where the amount in impose- penalty con- is within the limit named in statute. troversy Indeed, out one class of debtors and arbitrarily singles .statute punishes *19 a for failure to certain duties—duties which perform are a all not debtors; visited equally obligatory upon punishment with reason of failure to comply any by proper police regu- of or for the classes or to lations, protection laboring pre- or in matters, about vent of consequence litigation trifling bestowed Unless the by .State. privileges special corporate one select or one class may arbitrarily corporation legislature or one of one individual class of individuals, corporations, not them visit a others imposed upon upon penalty statute cannot this be of like sustained. guilty delinquency, never be But selection can it clas- justified by arbitrary calling demanded the. sification. The Fourteenth protection by equal this.” Amendment forbids how decision can
I do not present perceive upheld Ellis If without case. a rail- principles disregarding of road sued in Texas a claim less than upon $50 company or cannot be when stock, unsuccess- injuring required, killing ful in fee—no defence, its such rule attorney’s pay special in established reference other being corporations individ- sued for like amount cannot uals, understand money—I how life and health insurance alone all companies, corpora- in tions Texas, can be companies doing required fees when unsuccess- pay damages special attorney’s special UFE ASSN. METTLÉR. ». FID. MUT. Bnowx, dissenting. IIaklán
Justices them. The two suits statutes against defending brought ful the defendant this, company corporation, aré alike or a life or health a railroad corporation whether in an action it, if successful brought against even company, fees or damages recover attorney’s special could not special in a the defendant suit Thus its adversary. against in court is-not statute under either permitted appear brought and is it, subjected party suing terms of equality upon other upon burdens imposed .or special of them. demanded money refusing corporations that the courts this court informed We are opinion held that the Ellis ease distinguishable in Texas have o Central t Union and we are referred case, the present Life 651; and Casualty 86 Texas, v. Chowning, Fidelity Ins. Co. Fidelity affirmed 39 S. W. Allibone, v. Rep. Company v. 90 Tex. and New York Allibone, c Company & named, 61 S. W. The first Ins. Co. Orlopp, Rep. Life the Ellis was decided more than before of those cases two years this determined court. first case Texas case was was referred &c. which the Ellis ease to was that Fidelity In v. Allibone. that case the of Civil Court Company Appeals to certain in that after decisions State Texas, referring prior the statute here in sustaining constitutionality question, “A late decision of the United said: Court Supreme Ellis, Co. v. a somewhat States, Railway construing analogous of our State, statute of the decision reversing Supreme its be at with the Court variance cases approving validity, may until it is but, so held either our own cited; just expressly *20 States, Court or that of the will adhere United we Supreme the decisions made.” to in the last case already judgment was the affirmed, Court Texas Supreme observing nothing ” more than that the case was from the Ellis distinguishable case. what the two cases were Upon grounds distinguishable not stated. It is a convenient mode for very distinguish two to than cases, conflict, more apparently say nothing ing are In New York Ins. Co. v. they distinguishable. Life the statute was sustained that the Orlopp, upon ground could the terms on which State insurance com prescribe foreign do business within its limits. might panies Bsottx, dissenting.
Justices Hawi.an that the liability imposed by court particular This says one of the conditions on which amounted to statute-in do to busi- insurance and health companies permitted life of the of the State matter Texas, ness power of conditions of its own and foreign corporations imposition this court.” has been recognized by repeatedly a State conditions course, may Of speaking generally, impose But will on its own one or corporations. foreign any say, court ever that a held, has this a state directly provision to or enactment domestic, relating corporations, foreign or if such be inconsistent operative provision legally binding with the Constitution the United States ? a
It is one for a State to forbid cor- thing particular foreign a class foreign poration, particular corporations, business at all within its limits. It is another doing quite thing a State to admit license to do busi- corporations foreign its ness within limits and then them to some subject statutory that is Constitution of the United provision repugnant business Texas under its States. If a doing corporation, it's consent, with insists that a statute or license or particular in violation of the Constitution the United States, regulation be enforced it, therefore State need and cannot against only result of the deci- to be logical seems present reply—such is a condition of the the statute or sion—that regulation right business in the do whether State, and, of the corporation must be not, constitutional respected corporation. the several States are created by necessary Corporations and it is a conduct of country; startling that a State to do busi- permit corporation may proposition act within its sub- limits, ness acquire right be inconsistent may. corporation regulations ject law of land. supreme 20 Wall. Morse, 445, 455, 456, In Insurance Company Wisconsin, of other statute of requiring as a condition their do business States right stipulate, remove would not into the State, in that Federal they them in the suit state brought courts, court against to oust because tended the courts invalid held only *21 v. METI'LER. LIFE ASSN. MUT. Brown, dissenting. ami Justices HakiAn the Con- them of a conferred upon by United States jurisdiction exercise to the an obstruction but because created stitution, “ The court said: Every that instrument. of a by granted right to all the courts of entitled to resort country, citizen is all those the laws or courts- which all to invoke protection in- of the said that the further right afford.” The court may to it the suit was denied surance to remove it had made the state court on the agreement ground and re- of the State authorized referred and that the statute to, able We are not of the quired agreement. making and this distinguish agreement principle, requisition, an citizen from a similar one in the case of individual made New A York. has the same protec- right corporation tion of the and the same citizen, laws as a natural right ap- of- an indi- to all courts peal country. rights vidual are not in this of a to 'that superior, respect, corporation. The State of Wisconsin can its own corporations regulate the affairs of its citizens, own subordination, however, Constitution of the States. United of an requirement like this from their own would agreement be bru- corporations because no tumfulrnen, under the they possess Con- such.right stitution of the A United States. citizen, whether natural foreign in' this corporate, respect possesses right pertaining one of her own citizens. There must be a difference necessarily between the statutes of the two this respect.”
This presented somewhat different form in W. W. v.Co. Cargill Minnesota, 180 S.U. 468. That an action the State to a Wisconsin prevent corporation a warehouse owned it until it operating should have obtained a license from the Railroad and Warehouse Commission of Minnesota under a statute organized State, relating to elevators and warehouses. That statute : shall provided It be unlawful to receive, store or handle ship, any grain or warehouse, elevator unless the owner owners thereof shall have a license therefor procured from the state Railroad and Warehouse Commission, license shall be issued for the fee of one dollar year, written per only upon applica tion under oath, the location of such specifying elevator or
33é Bbown; dissenting. Harlan Justices firm *22 or name of the- person, corporation and warehouse or warehouse, such elevator and operating owning firm or the names of all the of the the members of all names and such of the owning elevator operating officers corporation for and all such licenses shall warehouse, or moneys received fund. license over to the state Such be turned grain inspection full such confer the licensee to shall authority operate upon in accordance with this State or elevator the laws of warehouse Commission, the rules said regulations prescribed by li- or such and every person, company corporation receiving beheld to have this act, shall cense accepted provisions of have to have with the same” to agreed complied thereby defended the Wisconsin suit corporation brought against the statute there involved repug it ground upon of the This court said : United States. to the Constitution nant so far as the Con State, of the the power We cannot question to a license concerned, is require States of the United stitution character within on business of carrying for the privilege purpose a license being requited limits—such its for itself, harmless only or lawful a business forbidding this is most pertinent Again regulation.” purposes —and however insists defendant “The court said: here—the of the Con are violation the statute of the some provisions if it obtained States, required’ of the United stitution all of its to have be held accepted provisions, it would license, c to have thereby agreed the words of statute) and (in The answer suggestion same.’ with the comply will not whatever form, license, impose of a the acceptance with or comply any an respect the licensee obligation upon or with prescribed by of the statute any regulations provisions that are Commission and Warehouse repug Railroad the state A license will States. of the United nant to the Constitution ac its carry the defendant full authority give valid of the State and the rules the valid laws with cordance If the Com the Commission. by prescribed regulations if it or to revoke one a license, refused to sought mission grant in the one or the licensee case, because applicant granted, other, comply statutory provisions refused to LIFE MUT. ASSN. METTLER. Bkown, dissenting. Justices Hablan with rules inconsistent with the regulations Constitution States, the United rights licensee applicant and enforced could be protected judicial appropriate pro ceedings.” case the defendant us,
In the before busi- company doing in Texas under license issued the State. ness By accept- did not to submit to license, agree ing that was local Constitution regulation repugnant States. It could resist enforcement United any regula- that was inconsistent with tion or rights statutory provision that instrument. secured that the life and
The court health says ground placing fire, a different class from marine and insurance companies reason as- is obvious. inland insurance companies only *23 the is for statement the prompt necessity pay- signed in in cases to of the insurance order ment money very many of which beneficiaries had been the means of the living provide But the same the death the insured.” reasons by deprived fire when exist a for by company prompt payment is and his the house which shelters the insured family destroyed under marine or inland statute, And a fire, fire. by yet, it is not loss, if resists a claim for liable, insurance company, to unsuccessful, its defence is special when pay any damages fee. It can defend suit attorney’s any brought against special to individual same conditions accorded under citizens But a and most arbi- bodies different generally. corporate for life and rule is prescribed health trary insurance companies. faith in Their a refusing good claim pay for loss, or defend- action an enforce brought ing of such a payment claim, into account. inIf, not (cid:127) (cid:127)taken any do a case, within not, they time, specified amount pay demanded them, no matter what be the may for reason their refusal and if do pay, they not succeed their must defence, not they pay only prin- sum, cipal interest, but, addition, twelve ordinary per cent amount of damages and all reasonable principal, fees for the attorney’s collection of the loss. prosecution effect, Thus the forbids a life or State, health insurance com- in a court.of appear defend suit pany justice brought the Case.
Statement that if the condition jury to the harsh it, subject except against must speciál defence, sustain does not exacted from that are fees attorney’s special damages who be sued individual, defendant, may corporate for money. classification corporations such an arbitrary
This is insurance com life and health against a discrimination Ellis case, within the statute decision as brings panies this court with referred by approval. been often which has 170 U. S. Bank, 294; Trust Sawings v. Illinois Magoun S. 409; R. R. v. 173 U. Paul, &c. Co. Mountain Louis, Iron St. Minnesota, W. W. v. 521; U. S. Co. Cargill Ames, 173 v. Nicol cited. above comes within the con- the statute question
In my opinion, of the denial State pro- equal stitutional prohibition be held void. and should laws tection WATERWORKS COMPANY ORLEANS NEW LOUISIANA. THE STATE COURT OP OF LOUISIANA. SUPREME ERROR TO THE March 10, May 5, 1902. 1902. Decided No. 590. Submitted jurisdiction judg- this court of over the exercise to warrant In order ground asserting fair courts, must be some state there ments of question, and in the absence thereof a writ of a Federal error existence dismissed, plainly although the of a Federal claim will appears claim, such a up; although the record it where set *24 foundation, the fact it was up, no substance raised was had set jurisdiction. “give this court not sufficient corporation power forfeit the charter of a for an has abuse That the State privileges, recognized is as law Louisiana. its proceeded against taking corporation is liable to be ille- In Louisiana by quo warranto at the suit of the State. gal rates questions, opinion no Upon of all the court is of a careful review juris- record, and that the court is without exists Federal in this case. diction in the nature of a 'warranto, brought quo proceeding This name of the State of Louisiana, the attorney general