123 S.W.2d 1 | Mo. | 1938
Lead Opinion
This is a certiorari proceeding to quash the record and opinion of the Kansas City Court of Appeals in Roberson v. Brotherhood of Locomotive Firemen and Enginemen,
Relator contends that the opinion of the Court of Appeals conflicts, in two respects, with the last controlling decisions of this court: (1) That the Roberson case was determined on appeal on a theory different from that upon which it was tried; (2) that the opinion, *669 in effect, made a new and different contract to that existing between relator and Roberson.
We ascertain from the opinion that Harrison L. Roberson, a member of relator, sued relator on a contract of disability benefit insurance. The cause was tried before the court without a jury, and resulted in a judgment in favor of Roberson. Appeal was taken to the Kansas City Court of Appeals, and the judgment was reversed and cause remanded, because the trial court did not find as to all of the constitutive facts.
It appears that relator is "a voluntary, unincorporated labor union, with a grand lodge and many subordinate lodges;" that "it has a representative form of government with a constitution and by-laws and practices secret ritualistic lodge work; that its membership is confined exclusively to one class of persons who are engaged in a single hazardous occupation, to-wit, persons employed as locomotive firemen and enginemen; and that it carried on insurance business, without profit, for the exclusive benefit of its members."
Roberson was employed as a locomotive engineer, and became a member of relator order in 1914, and received a certificate or policy in the relief department, and prior to 1928, he received a certificate in the pension department. In 1928, and while in good standing, he became totally disabled to perform any work on a locomotive engine, and was thereafter taken out of employment by the railroad company for which he worked, and was granted a pension by relator under his pension certificate. In 1931, and after Roberson was granted the pension, relator abolished its relief and pension departments, effective January 1, 1932, and established a disability benefit department, "under the provisions of which its members who were then adjudged to be permanently and totally disabled and who were then receiving benefits from the pension department, upon releasing defendant (relator) from all claims on account of the pension department, would be permitted to become members of the disability benefit department." Roberson was informed August 26, 1931, by relator, of the abolishment of the relief and pension departments and of the new arrangements. December 11, 1931, he was informed by relator "that he was adjudged to be totally and permanently disabled as provided in the law governing the disability benefit department, and that in exchange for his release of the pension department and the payment of $1.25 per month assessment thereafter, he would be immediately transferred to the disability benefit department, and would immediately receive benefits therefrom at the rate of $50 per month."
Roberson signed up, releasing the pension department, and thereafter received $50 per month until February 1, 1934, when relator notified him "that a physical examination, which it had caused to be *670 made of him in its routine check up on November 18, 1933, had shown that he was not `totally and permanently disabled' as defined in the laws" of relator. Dr. Brennan, a witness for relator at the trial, testified that he made the examination of Roberson, and to the effect that at the time (November 18, 1933) Roberson was not "totally and permanently disabled from or directing any work, but that he could do light work." The evidence on the part of Roberson was to the effect that he had been continuously, since 1928, until the date of the trial and then, was "wholly unable to perform any work."
It appears from the opinion that relator "is doing a fraternal, beneficiary insurance business in Missouri, and its contracts of insurance will be governed by the law applicable to such contracts," and says the opinion, since relator "is a fraternal beneficiary insurance company and the contract sued on is one of that character, it follows that the policy, the application, and the constitution and by-laws of defendant (relator) must all be considered together as forming the contract of insurance."
The opinion says that "it is apparent from the conclusions of fact and law as declared by the trial court, as well as from the court's refusal to find and make other conclusions of law and of fact as requested so to do by defendant (relator), that the (trial) court determined the case on the theory that the contract sued on is governed by the law relative to `old line' insurance contracts." This, says the Court of Appeals, "was an erroneous theory," but that "if the judgment below was for the right party, even though it was arrived at on a wrong or different theory of law from that upon which it must rest, yet it should be affirmed on appeal."
So far as pertinent here the finding of facts by the trial court and referred to in the opinion is as follows:
"The court finds that the defendant denied liability and denied that it was indebted to the plaintiff in any sum.
"The court finds that the defendant has its headquarters in the city of Cleveland, state of Ohio, operating under the laws of Ohio, and at no time has had a license or authority to transact business in Missouri from the superintendent of insurance, and that the defendant was not organized under the laws of the state of Missouri, and has never appointed the superintendent of insurance of the state of Missouri, in writing, to receive service of process."
Relator contended that it was exempt from complying with the law relative to fraternal, beneficiary associations, because it limited its membership to "one hazardous occupation." [See Sec. 6021, R.S. 1929, amended, Laws 1933, p. 273.]
The given declarations of law, pertinent here, are as follows: "The court declares the law to be that the contract sued on in question *671 is not governed by the laws of Missouri relating to fraternal, beneficiary societies.
"The court declares the law to be that where the defendant denied liability it waived the requirement of the by-laws providing for appeals within the order, and provisions of the requirement of written notice thirty days before action.
"The court declares the law to be that the provisions of Article 13 of Chapter 37 of the Revised Statutes of Missouri of 1929 (relating to fraternal, beneficiary associations), do not govern the contract sued on and the failure of defendant to comply with the provisions of Article 13, Chapter 37 of the Revised Statutes of Missouri of 1929, makes the contract sued on governed by the insurance laws of the state of Missouri.
"The court declares the law to be that the denial of liability by the society waived the requirement for submission to the tribunals of the order before bringing an action at law against the defendant."
The opinion says that defendant (relator) contended that Roberson "is bound by positive declarations in his pleadings and that same irrevocably commit him to an entirely different theory than that upon which he recovered, and that he disclaims therein that he claims under the disability benefit department." Then the Court of Appeals goes on to say that if Roberson recovers at all, it must be under his certificate in the disability benefit department, "because he is conclusively bound by his written and signed application for membership therein, and his renunciation, in the same instrument, of all rights he might have under the pension department." The opinion says that "the provisions of the `pension' department were pleaded in his petition as was the letter of December 11, 1931, from defendant to plaintiff, soliciting him to release his claims under the one department and become a member under the other; and he also pleaded his acceptance of these terms, setting out the provisions of the `Disability Benefit Department,' alleged that he was transformed to this department and paid all assessments therein and received benefits therefrom until February 1, 1934, when defendant discontinued his benefits."
Apparently, Roberson did not have a disability benefit certificate as such, but he had relator's agreement to place him in this department, and as the opinion shows, he had been receiving $50 per month from this department until these payments were stopped. He asked for and recovered a judgment for $1150, and this was based on $50 per month from the time his payments were stopped. He denied, in his reply "that he ever acquiesced, accepted, or adopted the provisions of the disability benefit department," but this is contrary to his petition, and the opinion says a mere conclusion. *672
Relator, in its answer, pleaded that payments to Roberson were stopped, because upon examination November 18, 1933, it was found that he "was not totally and permanently disabled or so totally and permanently disabled as to bring him within the provisions of said disability benefit department." And relator requested the trial court to find, but was refused, that under Section 23 of Article 8 of its Constitution, total and permanent disability "prevents a member from engaging in any occupation, profession, or business or from performing or directing any work for remuneration or profit."
The first assignment of conflict that the Roberson case was determined on appeal on a theory different from that upon which it was tried, is based on the fact that the trial court held that, so far as appeared in the Roberson case, relator was not a fraternal, beneficiary association, but was what is commonly called an old line company.
As supporting the first assignment of conflict relator cites Henry County v. Citizens Bank,
Aloe v. Fidelity Mut. Life Assn.,
[2] The reply alleged that the contract was controlled by the law of Pennsylvania, "and that by the statute of that State the answers (to questions in the application) pleaded by defendant were misrepresentations as contradistinguished from warrants and did not, by reason of the statute, avoid the policy unless the answers were material to the risk or were made in bad faith." The defendant moved to strike that part of the reply pleading the Pennsylvania law, but this motion was overruled. The judgment below was for the plaintiff, based on the theory that the defendant was an assessment company, but that the policy in suit was governed by the law of Pennsylvania. On appeal to this court, it was held, in division, that what is now Section 5782 was applicable to assessment companies, overruling prior decisions to the contrary. The cause went to banc, and it was held by the majority that the policy was governed by the law of Missouri, and that what is now Section 5782 did not apply to assessment companies. The judgment was affirmed, not on the theory under which the trial court proceeded, but on the theory that "the defendant was not an assessment company, but a regular old line company."
The term theory when used in connection with the trite rule that recovery cannot be had in an appellate court on a different theory than that upon which the case was tried, evidently does not have reference to what facts the evidence establishes, but the term theory, when so used, has reference to cause ofaction, or defense, or to "a matter essential to the rendition of the judgment." [State ex rel. Bush v. Sturgis et al.,
As appears, supra, relator cites a number of cases holding that recovery cannot be had in an appellate court on a theory different than that upon which the case was tried. In the Henry County case, supra, 208 Mo. l.c. 225, 106 S.W. 622, it is said that "it is fundamental that the recovery sought in this proceeding by the plaintiff must stand or fall on the cause of action embraced in the pleading. It cannot sue upon one cause of action and recover upon another. Another cardinal rule applicable to pleadings and practice, which has repeatedly received sanction by this court, is `that a party will not be permitted to try his cause upon one theory in the trial court and if unsuccessful on the legal battlefield of his own choosing, spring a fresh theory upon his adversary and undertake finally to enter the contest in this court forming entirely different lines of legal battle.'"
In Snyder v. American Car Foundry Co., supra (
In City of St. Louis v. Wright Contracting Co., supra, it is said that "the case must be tried in this court upon the same theory as in the court below." The meaning of the term theory
as there used is plain from headnote 3 (
State ex rel. Bush, Receiver, v. Sturgis et al.,
[3] We do not deem it necessary to review other cases on the first assignment of conflict. All we can perceive respecting change of theory as to the classification of relator as an insurance company, is that, under the pleadings and the evidence, the trial court found that relator was an old line insurance company, while the Court of Appeals on the same pleadings and the same evidence found that relator was a fraternal, beneficiary association. We rule the first assignment of conflict against relator.
We repeat, for convenience of the reader, the second assignment of conflict, that the opinion sought to be quashed, in effect, made a new and different contract to that existing between relator and Roberson. As supporting this assignment relator cites State ex rel. Am. Fire Ins. Co. v. Ellison,
[4] It appears that relator, in addition to defending on the ground that Roberson was not totally and permanently disabled within the meaning of the law, defended also on the ground that Roberson did not, after his pension payments were discontinued and before bringing suit, take the steps, as to appeal, within the order and required by its constitution and by-laws. The opinion recites that "the constitution and by-laws of defendant contain a provision that in case any member shall feel himself aggrieved by any action taken by any constituted authority of defendant, said member, or his local lodge, *676 may appeal from said decision to the higher authorities of the lodge, in the order and manner mentioned therein; and also provided that no suit shall be instituted against defendant in a court of law until after all rights of appeal have been exhausted within the lodge. It is conceded that plaintiff took no step within the lodge to obtain such redress prior to institution of this suit. Failure so to do was urged below, and is urged here, as a bar to this action." The Court of Appeals held that these conditions precedent, so to speak, before seeking redress in the courts, were unreasonable and void.
Roberson pleaded in his reply that the provisions of relator's constitution and by-laws requiring an aggrieved member to exhaust, before resorting to the courts, the remedies provided within relator order, were "void, immoral and against public policy, and attempts to deprive the courts of jurisdiction." And he pleaded to the same effect as to the provision of relator's constitution and by-laws requiring an aggrieved member to give 30 days' written notice "of his intention" to bring suit. The order of procedure of an aggrieved member, under the constitution and by-laws, was an appeal, either by himself or his local lodge, to the international president of relator, and if satisfactory redress was not there obtained, then he could appeal to the board of directors. If no satisfactory redress is obtained from the board of directors, then he could give the 30 days' written notice of his intention to sue, and proceed in the courts to redress his grievance.
The trial court held that such required procedure, before an aggrieved member could seek redress in the courts was waived by relator by denying liability, while the Court of Appeals held that such required procedure was unreasonable and void. This appears in the opinion: "The headquarters of the order is at Cleveland, Ohio, where the international president maintains his office. Any appeal prosecuted before him would require that the claimant, if he desired to be personally present, go there for that purpose. The same is true of an appeal to the board of directors. This would require claimant to journey to a different and foreign State, at considerable expense and time; and to prosecute the successive appeals provided for would require undue delay and might accomplish nothing, but merely result in his finally being compelled to sue in the courts of the State. Ordinarily the courts will not require the doing of an unreasonable and useless act before resorting to a legal remedy in court." The opinion considers at some length the question of the reasonableness of the requirements of an aggrieved member before he could resort to the courts. Many cases were cited and discussed.
State ex rel. American Fire Ins. Co. v. Ellison et al.,
State ex rel. Western Automobile Ins. Co. v. Trimble et al.,
State ex rel. Mutual Benefit, Health Accident Assn. v. Trimble et al.,
"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."
It will be noted that the cases we have reviewed, on relator's second assignment of conflict, deal with conditions upon which liability depended. And such is the situation in the other cases cited by relator, while Roberson's case concerned matters of procedure within relator's order before Roberson could resort to the courts for redress. It is not claimed that liability of relator was conditioned on Roberson complying with the required conditions precedent before he could resort to the courts. Relator concedes that had such been the case, the conditions would have been void. [See McMahon v. Supreme Tent Knights of the Maccabees,
McMahon v. The Supreme Council Order of Chosen Friends,
We find no authority to support relator's second assignment of conflict. The writ should be quashed, and it is so ordered.Ferguson and Hyde, CC., concur.
Addendum
The foregoing opinion by BRADLEY, C., is adopted as the opinion of the court. All the judges concur. *679