77 Mo. App. 391 | Mo. Ct. App. | 1898
In 1887, The Union Mutual Fire Insurance Company was incorporated under the laws of the state of Ohio. As its name indicates, it was authorized to do a fire insurance business on the mutual plan. In 1888 the defendant, a Missouri corporation, insured its property in Clarksville, Missouri, in this company for the period of five years. In consideration of the policy the defendant executed and delivered to the insurance company a premium note for $300, which it agreed to pay at such times and in such sums as might be necessary to meet the liabilities of the company. The defendant paid one or two assessments on the note during the active business of the company. In December, 1890, the company, by a decree of the supreme court, of the state of Ohio, was disincorporated and enjoined from doing any further business, and the plaintiff here was appointed trustee to wind up its affairs. In order to meet the liabilities of the company, it became necessary to make additional assessments on the premium notes held by it, and in pursuance of an order of the Ohio court, the plaintiff was required to call for an assessment against all such notes. The assessment against the defendant’s note amounted to $180. The present action is to recover that amount, the defendant having refused on demand to pay it. The defense to the action is, that the note was without consideration, in that the contract of insurance was void, for the reason that the insurance company failed to comply with the requirements of the statutes of the state which were conditions precedent to its right to do business in the state. The cause was submitted to the court without a jury. The
There is practically no dispute as to the evidence. It is not controverted that the insurance was solicited by an agent of the insurance company in the city of St. Louis; that the application for the insurance was written by him, and forwarded by him to the insurance company at its office in the state of Ohio; that the policy was issued and sent by mail to this agent; that it was received by him and delivered to defendant, and that the property insured was situated in Missouri. It is also conceded that at no time did the insurance company comply with the conditions and requirements of the statutes of Missouri regulating and governing foreign fire insurance companies desiring to do business in this state.
The single question arising under the evidence is, whether the contract of insurance was void 2 If it was, then the note given in consideration of it is likewise void. The plaintiff’s instructions, which the court refused, presented the negative of the question.
In support of this contention counsel for appellant relies on the decisions of the supreme court in the cases of Columbus Ins. Co. v. Walsh, 18 Mo. 229, and Clark v. Middleton, Garnishee of Insurance Company, 19 Mo. 53. In both of these cases the plaintiffs sued on premium notes given for insurance, and the defenses were, that the insurance companies were foreign corporations ; that the contracts were made in this state; that the property insured was likewise in this state, and that the agents who solicited the insurance failed to comply with the then existing statutes, which required agents of insurance companies of sister states to pay a state license before attempting to solicit insurance for their companies, and providing for penalties as to the agent for failure to do so. The statute also provided that
In section 5890, article 4 of the Revised Statutes of 1889, entitled “insurance other than life,” it is provided that an insurance company organized under the laws of a sister state and proposing to do business in this state, must prepare a report under oath and file it in the office of the superintendent of the insurance department, containing a full statement of its financial condition for the preceding year ending December 31.
Under section 5891, such a company is required to file in the office of said superintendent a certified copy of its charter, etc.; and by section 5912 it is required to file with said superintendent a power of attorney authorizing him to acknowledge or receive service of process, etc.
Section 5911 provides that “No individual or association of individuals, under any style or name, shall be permitted to do the business mentioned in this chapter within the state of Missouri, unless he or they shall first fully comply with all the provisions of the laws of this state governing the business of insurance.”
Section 5916 states that if an agent for such a corporation solicits business in this state without first having obtained a certificate from the superintendent of insurance authorizing him to do so, he shall be deemed guilty of a misdemeanor, &c.”
Under the sections of the statute of 1869, supra, corresponding with those above referred to, the supreme court in effect decided (Ins. Co. v. Smith, 73 Mo. 368) that a premium note having for its consideration a fire policy issued by a company of a sister state
The judgment of the circuit court will be affirmed.