PACKARD MANUFACTURING COMPANY, a Corporation, v. INDIANA LUMBERMENS MUTUAL INSURANCE COMPANY, a Corporation, Appellant.
No. 39608
Court en Banc
June 10, 1947
Rehearing Denied, July 14, 1947
203 S.W.2d 415 | 356 Mo. 687
Speaking of the presence of a corporation in a state in the sense of being amenable to process the court, in the International Shoe Company case, said [326 U. S. 1. c. 317] that “‘presence’ in the state in this sense has never been doubted when the activities of the corporation there have not only been continuous and systematic, but also give rise to the liabilities sued on, even though no consent to be sued or authorization to an agent to accept service of process has been given.” In Prentice-Hall Corporation Service, monthly report letter No. 6, dated December 4, 1946, p. 5, the International Shoe Company case is considered and this is said: “Regular and systematic solicitation of orders in a state by the salesmen of an unqualified foreign corporation, resulting in a large volume of interstate business, constitutes sufficient activity to establish corporation‘s presence within the state for service of process and taxation by the state. Thus, the court severed another strand linking corporate interstate activity with immunity from state taxation.”
It is true that the International Shoe Company case deals with a question on the sufficiency of service in a state tax matter while the present case deals with a question on the sufficiency of service in the matter of a breach of contract to be performed, in a large part, in the state where the plaintiffs reside. In view of the ruling in the International Shoe Company case, we are constrained to rule that, under the facts here, defendant was doing business in this state to the extent of making it amenable to the process served upon it.
The judgment of the trial court should be reversed and the cause remanded. It is so ordered. Dalton and Van Osdol, CC., concur.
PER CURIAM:--The foregoing opinion by BRADLEY, C., is adopted as the opinion of the court. All the judges concur.
“This entire policy, unless otherwise provided by agreement indorsed hereon or added hereto, shall be void if . . .; or if the hazard be increased by any means within the control or knowledge of the insured; . . . or if (any usage or custom of trade or manufacture to the contrary notwithstanding) there be kept, used or allowed on the above described premises, benzine, benzole, dynamite, ether, fireworks, gasoline, greek fire, gunpowder exceeding twenty-five pounds in quantity, naphtha, nitro-glycerine or other explosives . . .”
There is no dispute about 11 gallons of gasoline in two 5-gallon and one 1-gallon containers being in the building for five or six weeks before the fire and remaining there until after the fire.
Insured was organized as a corporation in April, 1943. Frank Cammarata was president, Walter Gummersheimer was vice-president, and Paul J. Schneider was secretary and treasurer of the corporation. Messrs. Cammarata and Schneider each contributed $6,000 of the original $12,000 capital. Due to World War II, steel was not available for certain civilian purposes in 1943 and insured engaged in the business of manufacturing wooden baby carriages, nursery and high chairs, play pens and like articles. Sometime in late 1943 or early 1944 steel was released from its war-time restrictions and was again available for the manufacture of baby carriages. The fire occurred on the night of March 3, 1944, the report coming in about 10:20 P. M.
Insurance policies, like other contracts, receive reasonable interpretations. The ultimate aim is to ascertain the object and intent of the parties. An often quoted statement is: “Courts are without authority to rewrite contracts, even insurance contracts, although it may appear that in some respects they operate harshly or inequitably as to one of the parties: they discharge their full duty when they ascertain and give effect to the intentions of the parties, as disclosed by the contract which they have themselves made.” Prange v. International L. Ins. Co., 329 Mo. 651, 661, 46 S. W. 2d 523, 526, 80 A. L. R. 950, 957, citing cases. And: “Plain and unambiguous language must be given its plain meaning. The contract should be construed as a whole; but insofar as open to different constructions, that most favorable to the insured must be adopted. [Citing authority.] However, as said in 14 R. C. L., Sec. 103, p. 931, the rule ‘does not authorize a perversion of language, or the exercise of inventive powers for the purpose of creating an ambiguity where none exists.‘” Wendorff v. Missouri State L. Ins. Co., 318 Mo. 363, 370, 1 S. W. 2d 99, 101[4, 7], 57 A. L. R. 615, 619. See also Broadway Laundry Co. v. New York L. Ins. Co., 351 Mo. 278, 286, 172 S. W. 2d 851, 853[2]; State ex rel. v. Shain, 350 Mo. 422, 427, 166 S. W. 2d 484, 487; State ex rel. v. Shain, 344 Mo. 623, 127 S. W. 2d 675; and cases infra generally.
A leading case on the issue in Missouri is Kenefick and Hammond v. Norwich Union F. Ins. Soc., 205 Mo. 294, 103 S. W. 957, sustaining 119 Mo. App. 308, 80 S. W. 694, and holding a fire insurance policy on supplies, equipment, tools et cetera in a warehouse stood sus-
State ex rel. American F. Ins. Co. v. Ellison (Banc), 269 Mo. 410, 190 S. W. 879, involved a provision making an entire policy void “if with the knowledge of the insured foreclosure proceedings be commenced, or notice given of the sale of any property covered by this policy by virtue of any mortgage, or trust deed . . .” (An identical provision is a part of the sentence under consideration in the instant case.) Insured was a manufacturing corporation. The property was subject to two mortgages; a first securing $100,000 in bonds and a second securing $20,000 in notes, original amounts. The note holders acquired the capital stock of the insured and also a large part of the $100,000 in bonds, we understand sufficient for control thereof. Another company took a lease on and, later, an option to purchase insured‘s plant and went into possession June 1, 1913. The property was then advertised for sale under the second mortgage. The fire occurred June 17, and on June 30 the lessee exercised its option to purchase. The property was purchased at the foreclosure sale about two weeks after the fire by one of the parties interested in the notes, bonds and stock of the insured. The foreclosure was at the request of all interested parties and to “straighten out” the title that it might be conveyed to the holder of the option to purchase freed of any efforts of general creditors to subject it to their judgments, insured being on the verge of bankruptcy. The value of the property was established at $110,000; and the issue was that, since foreclosure could not increase the hazard with a secured indebtedness of $120,000, the
Henderson v. Massachusetts Bonding & Inv. Co., 337 Mo. 1, 84 S. W. 2d 922, cited by insured, held a prohibited warranty against “explosives” did not prohibit the keeping of “fireworks” for sale where insurer‘s policy-writing agent had been informed insured sold fireworks for the July Fourth season because such differences exist between “explosives” and “fireworks” that to have avoided liability “fireworks” should have been specifically named in the prohibited articles warranty. The concluding paragraph of the Henderson opinion clearly implies that had “fireworks” been specifically named in the prohibited articles warranty, as “gasoline” is specifically named in the instant warranty, the loss would not have been protected. We mention other authorities in the margin.1
Insured‘s argument that liability exists because insured did not have knowledge or control of the 11 gallons of gasoline owned by
Insured‘s cases are distinguishable. Schaffer v. Hampton Farmers’ Mut. Ins. Co., 183 Minn. 101, 235 N. W. 618, 619 [2], and Royal Exch. Assur. of London v. Thrower, 246 Fed. 768, 770 [4], explicitly recognize the distinction between the increased hazard warranty and the prohibited articles warranty, but the facts were within the increased hazard warranty and, consequently, conditioned upon the knowledge
Prohibited articles warranties are variously worded and the meaning of an insurance policy changes with the language employed. Insured‘s cases of I. H. Lawrence & Son v. Merchants & Mechanic‘s Mut. Aid Soc. (Mo. App.), 277 S. W. 588, 589 [2], and Smith v. German Ins. Co., 107 Mich. 270, 65 N. W. 236, 239, 240, 30 L. R. A. 368, passed off on the “storing” of gasoline. The policies in the Lawrence & Son case were upon a stock of groceries in a store building. A by-law of the insurer provided: “No gasoline or coal oil shall be stored in any room or warehouse where a fire of any kind is maintained.” Small quantities of coal oil for a cook stove and gasoline for lamps stored under a shed in the yard, were brought into the building as occasion therefore arose as an incident to the ordinary and usual conduct of the business. The court held: “It is manifest that the coal oil and gasoline kept in the building temporarily in small quantities for consumption in the coal oil stove and gasoline lamps . . . were not ‘stored’ in the building within the meaning of the by-law in question.” See Weininger v. Metropolitan F. Ins. Co., 359 Ill. 584, 195 N. E. 420, 98 A. L. R. 169, 176, citing a number of cases.
The Smith case involved the destruction of a county courthouse, was by a divided court, three judges joining in the majority opinion, another tendering a strong dissent and the other not sitting. The holding turned on the correctness of an instruction to the effect that insured‘s defense predicated upon a “storing” (the policy provisions were broader) of gasoline in the courthouse was without foundation. In the repair of the courthouse it was necessary for painters to scrape off the old paint. Gasoline torches were used to facilitate this
It was there without any intention for its consumption in the usual prosecution of or for any purpose connected with insured‘s business. It was there without definite limitation as to time. A transient keeping is one which must be brief. The instant keeping had continued for five or six weeks and might have continued throughout the life of the policies. Its presence was not temporary within the meaning of the adjudicated cases. The established keeping was a storing for future use. The breach of the prohibited articles warranty is inescapable under our rulings in Kenefick-Hammond v. Norwich Union F. Ins. Soc., State ex rel. American F. Ins. Co. v. Ellison, and Renshaw v. Missouri State Mut. F. & M. Ins. Co., all supra. It is also inescapable if we give effect to the covenant between the parties that: “This entire policy . . . shall be void . . . if . . . there be kept, used or allowed on the above described premises . . . gasoline . . .” under the more general holdings in cases like Prange v. International L. Ins. Co., Wendorff v. Missouri State L. Ins. Co., supra. Missouri courts have not gone to the length of some courts in construing away the affirmative provisions of contracts. The order granting a new trial should be set aside with direction to reinstate the verdict of the jury and enter judgment thereon. It is so ordered.
PER CURIAM: - The foregoing opinion by BOHLING, C., is adopted as the opinion of the Court en Banc. Douglas, Ellison, Hyde and Leedy, JJ., concur; Conkling, J., concurs in result; Clark, J., and Tipton, C. J., dissent.
A corporation can obtain knowledge only through its officers or agents and it is a well established rule of agency that the knowledge of an agent of a corporation with reference to a matter within its scope of his authority and employment and to which his authority or employment extends is imputed to the corporation. [2 Am. Jur. 286, Sec‘s. 368-370; 13 Am. Jur. 1035, Sec. 1110; 3 C. J. S. 194, Sec. 262; 19 C. J. S. 613, Sec. 1078; Globe Indemnity Co. v. First National Bank (Mo. App.), 133 S. W. (2d) 1066; Schneider v. Schneider, 347 Mo. 102, 146 S. W. (2d) 584; Dace v. John Hancock Mut. Life Ins. Co. (Mo. Sup.), 148 S. W. (2d) 93; Osler v. Joplin Life Ins. Co. (Mo. Sup.), 164 S. W. (2d) 295.] Certainly, the keeping of this gasoline, in the place where it was left, was a matter within the authority of plaintiff‘s plant superintendent. Therefore, even on respondent‘s construction of the above quoted words, there is no escape from the fact that it did have sufficient knowledge of this gasoline being kept there and allowed it to remain on the premises.
The motion for rehearing is overruled. All concur.
