source: Caselaw Access Project

author: GRAVES, P. J.

license: Public Domain

text:
    LULU YOUNG v. PENNSYLVANIA FIRE INSURANCE COMPANY, Appellant.
    Division One,
    July 3, 1916.

    1. PREMATURE SUIT: Must Be Pleaded, The question of a premature suit is in the nature of a plea in abatement, and to be available should be specifically pleaded.
    2. -: Insurance: Waiver of Proof of Loss. An insurance company waives proof of loss when it enters- into an arbitration of the amount of damages under the policy. It also waives proof of loss when its adjuster confers with the insured about the loss, concedes liability and enters into an agreement to arbitrate the amount of the damage, without demanding proof of loss or offering blank proofs to the plaintiff. And if the policy stipulates that suit cannot be brought within sixty days after proof of loss, a suit brought more than sixty days after such waiver is not premature, for the waiver takes the place of actual proof. Nor is the waiver affected by the fact that after the appraisers made their award, the insured, as a matter of precaution, made proof of loss and brought suit within sixty days thereafter.
    3. INSURANCE: Appraisement: Void Under Statute. When section 868, Revised Statutes 1909, is read in the connection intended by the Legislature, its purpose will be seen to be to render void provisions in insurance contracts which attempt to enforce settlements by means of appraisers. Its purpose was to nullify appraisement clauses in contracts.

      4. -: -: -: Retroactive Operation. But said statute applied only to contracts “hereafter entered into,” and since it was enacted in 1909 is could not affect a contract made in 1907.
    6. -: -: Bar to Suit: Measure of Damages: Fraud. A ■ written agreement appointing appraisers, entered into after the fire, by which the parties to an insurance policy agree to accept their appraisement, does not bar a suit by the insured upon the policy, because the cause of action is not merged into an award, as in arbitration; but such appraisement is binding as to the amount of loss, if it was not fraudulently procured.
    6. -: -: Release: Procured by Fraud: Pleading: Trial by Jury: Section 1812. If the appraisement, under an agreement entered into, after the fire, by the parties to the policy, is procured by fraud of any kind upon the part of one of the parties, and such party sets up the appraisement in bar of a full and complete recovery, the other party can, under section 1812, Revised Statutes 1909, plead the fraud, and have such fraud determined by a jury. . That statute is broad enough to embrace a partial release, as well as a full release. [Disapproving Shoe Co. v. Insurance Co., 178 S. W. 1. c. 248.]
    7. -: -: -: -: Considered as Equitable Defense: Estoppel. Even if the reply to the insurance company’s answer - ■ setting up an appraisement in bar of the action on the policy for damages, by which it is charged that the appraisement was procured by fraud, be considered to be equitable in its nature, defendant is estopped to complain that the court erred in overruling its demurrer to the reply, if, after such ruling, it proceeded, without objection, to try the case, before a jury, as one at law. ■
    8. -;-; Evidence of Fraud: Appraiser and Umpire. Conceding that appraisements of the loss by fire will not be set aside except upon clear and convincing evidence of fraud, shocking misconduct by the company’s appraiser and the umpire will sustain the charge of fraud.
    9. -: View of Property by Jury: Discretion of Court. Whether or not the trial jury shall be permitted to view the property after the fire is a matter largely discretionary with the trial court, and if the facts show no abuse of such discretion a refusal will not on appeal be held to be error. Nor will the fact that the trial judge placed its refusal upon the ground, that he was not empowered to make such an order affect the ruling, if the facts show there was no abuse of his discretion.
    10. -: Vexatious Delay: Evidence: Threats. Evidence that defendant’s own adjuster estimated the damages to be greater by more than fifty per cent than the amount agreed to by the appraisers, and that defendant threatened to keep the case in court for five years if the insured did not accept the known fraudulent appraisement, is sufficient to submit to the jury the question of vexatious refusal to pay. - ■ -

      Appeal from Audrain. Circuit Court. — Eon. James D. Barnett, Judge.
    Affirmed.

      Ryan & Thompson for appellant.
    (1) This suit was premature. The action under the policy could not be brought until more than sixty days after the proofs of loss. The question of waiver by defendant does not arise. The defendant was willing to pay the award ánd no more, but that gave the plaintiff no right to bring suit before the expiration of the sixty days as for a total loss. Further the finding of the jury was that there was not a total loss. We find no insurance case in Missouri just in point but the general rule that a cause of action cannot be maintained because the obligation has not accrued is laid down in these cases: Heard v. Ritchey, 112 Mo. 516; Turk v. Stahl, 53 Mo. 437; Mason v. Bernard, 37 Mo. 385-391; Bush Cons. Co. v. Withnell, 190 Mo. App. 44; Lawler v. Vette, 166 Mo. App. 352; Brown v. Shuck, 27 Mo. App. 351; Van-dike v. Maddix, 23 Mo. App. 192; Duryee v. Turner, 20 Mo. App. 34; Crier v. Fox, 4 Mo. App. 522. Said cases approve the method followed in this case of raising the question, to-wit under a general denial by demurrer to the evidence. (2) The court erred in overruling the defendant’s demurrer to the reply. The award was not void but at most voidable, and pi a in - tiff’s relief, if any, against the appraisement could only have been awarded in a. court of equity. Sec. 1812, R. S. 1909, does not apply. Shoe Co. v. Phoenix Co., 178 S. W. 246; Althoff v. Transit Co., 212 Mo. 166; Courtney v. Blackwell, 150 Mo. 245; Hancock v. Blackwell, 139 Mo. 445; Ochs v. Railroad, 130 Mo. 77; Blair v. Railroad, 89 Mo. 383; Finley v. Finley, 11 Mo. 624; Kaplan v. Niagara Co., 65 Atl. (N. J.) 188; Ins. Co. v. Ríes, 80 Ohio St. 282; Fire Assn. v. Allesina, 45 Ore. 158; Michels v. Western U. Assn., 129 Mich 424; N. B. & M. Ins. Co. v. Lathrop, 70 Fed. 429; Sec. 1812, R. S. 1909. (3) The courts look with approval on submitting the amount of loss to appraisal, and if the appraisers act fairly, and reasonably, in examining into the loss and making their award, and are animated in good faith by a desire to reach a fair award their conduct and conclusion will be upheld. It is presumed they have done their duty and their award will not be set aside save on clear and convincing evidence of fraud, misconduct or mistake. Kent Co. v. Ins. Co., 165 Mo. App. 45; Stevens v. Ins. Co., 120 Mo. App. 104; Sebree v. Board of Education, 254 111. 438; Liverpool Co. v. Goehring, 99 Pa. St. 13; Steel Co. v. Ins. Co., 87 Fed. 733; Vincent v. Ins. Co., 120 Iowa, 272; Hall v. Ins. Co., 57 Conn. 105. (4) The conduct of the appraisers and umpire here in taking the estimates of mill men, painters, etc., into consideration in making up their award was proper. The appraisers are the exclusive judges of what evidence they needed in reaching a conclusion, the agreement of submission not providing for any hearing. Liverpool Co. v. Goehring, 99 Pa. St. 13; Steel Co. v. Ins. Co., 87 Fed. 733; Sebree v. Board of Education, 254 111. 438. The evidence here shows that Young, himself, got an estimate for his appraiser, Hurster, which the latter presented to his colleagues. (5) The court erred in submitting to the jury the question of the validity of the award. Even if the award could be attacked by the reply, the evidence failed to support the charges and justify setting aside the award. Authorities under points three and four. (6) The court erred in holding that it had no jurisdiction to' send the jury to St. Louis, to inspect the premises. (a) In not exercising its discretion and determining upon defendant’s application, whether or not the jury should be sent to St. Louis to inspect the premises The court had that discretion. Ellis v. Railroad, 131 Mo. App. 400; Springer v. Chicago, 135 111. 552 ; 45 Central Law Journal, 51; 26 Central Law Journal, 436. (b) The court should have, under the evidence, and the circumstances as developed, exercised discretion and sent the jury to St. Louis to inspect the premises. (7) The court should not have admitted evidence as to attorneys’ fees and should have instructed the jury there could be no recovery of damages or attorneys’ fees under Sec. 7068, R. S. 1909. There was no evidence to warrant finding a vexatious refusal to pay the loss; and besides the jury did not award plaintiff all she had demanded. Fager v. .Union Ins. Co., 189 Mo. App. 464-9; Weston v. Ins. Co., 191 Mo. App. 282; Rogers v. Indemnity Co., 189 Mo. App. 82; Kahn v. London Corp., 187 Mo. App. 216; Patterson v. Ins. Co., 174 Mo. App. 37-44; Blackwell v. Ins. Co., 80 Mo. App. 75.

      'Reynolds & Harlan and Leahy, Sawnders & Barth,. Amici Curiae.

      Frank H. Haskins and Fauntleroy, Cullen & Hay for respondent.
    (1) The defense that an action on an insurance policy is prematurely brought is an affirmative defense of which defendant cannot avail itself under a general denial. Giboney v. Ins. Co., 48 Mo. App. 185; Burgess v. Ins. Co., 114 Mo. App. 188; Meyer Bros. v. Ins. Co., 73 Mo. App. 166 ; Miles v. Casualty Co., 115 N. Y. Supp. 1 (a) The provision that loss shall be payable sixty days after proof of loss is waived by such action of the company as waives proof of loss. Jensen v. Ins. Co., 116 N. W. 286; Preferred Accident Co. v. Fulding, 83 Pac. (Colo.) 1013. (b) The insurance company’s failure to furnish blank forms of proofs of loss waived its right to defend for want of proofs of loss. The answer does not aver that such blank forms were furnished, and hence no issue as to proofs of loss is in the case. R. S. 1909, secs. 7028, 7029; Bank v. Assurance Co., 106 Mo. App. 114; Meyer Bros. v. Ins. Co., 73 Mo. App. 166. (c) The defendant waived its right to demand proofs of loss by demanding and securing an appraisal. Branigan v. Ins. Co., 102 Mo. App. 70; Bank v. Ins. Co., 109 Mo. App. 654; Murphy v. Ins. Co., 70 Mo. App. 78; Ross v. Ins. Co., 114 Pac. (Kan.) 1054; George Dee & Sons Co. v. Ins. Co., 73 N. W. 594. (d) When once waived, the requirement that proof of loss should be furnished is eliminated from the policy and the voluntary furnishing of proofs "by the plaintiff is a superfluous act and does not enlarge the time when the policy falls due. Carp v. Ins. Co., 116 Mo. App. 543; Burgess v. Ins. Co., 114 Mo. App. 168; Roberts v. Ins. Co., 94 Mo. App. 149; Porter v. Ins. Co., 62 Mo. App: 520. (e) The answer of the defendant admits liability for the amount of the award, and this admission is in substance and effect a tender, and the plaintiff is estopped from contending that the suit is premature. Giboney v. German Ins. Co., 48 Mo. App. 185; Eagan v. Martin, 81 Mo. App. 679; Bambrick y. McCormick, 157 Mo. App. 199. (2) The'award may be attacked at law. An “arbitration” or “appraisal” under an insurance policy does not fall within the purview of statutes or common law prescribing the formal requisites of an “arbitration and award,” and hence may be set aside without resort to equity. Zallee y. Ins. Co., 44 Mo. 530; Paint Co. v. Ins. Co., 165 Mo. App. 30; Shoe Co. v. Assur. Co., 178 S. "W. (Mo. App.) 246; Gar-red v. Doniphan, 10 Mo. 161; Tiffany v. Coffee, 142 Mo. App. 210; Ins. Co. v. Darragh, 128 Fed. 890; Sears v. Ins. Co., 149. Mass. 345. This question was attempted to he raised only by a demurrer filed a moment before the case was called and after the case had, on application of defendant, been continued several times, and was properly overruled as being filed too late. Stonemets v. Head, 248 Mo. 243. (3) The statute applies to such settlement. The term “settlement” as used in the statute does not necessarily mean payment or satisfaction, though it may mean that. It frequently means adjustment, arrangement. A “settlement” is a contract between two parties by means of which they ascertain the state of the accounts between them and strike a balance. Toombs v. Stockwell, 131 Mich. 633; Beall v. Water Co., 185 Fed. 179; Jackson v. Ely, 57 Ohio St. 450. (4) the award was invalid. While appraisers may not always be required to take evidence as to the damage to property visible and open to their inspection, but as to property wholly destroyed or not so visible and open to inspection, appraisers necessarily act upon information or evidence, and both the insured and the company should receive notice of time and place of hearing, and a refusal in such ease to hear evidence vitiates the award. Jones v. Ins. Co., 171 S. W. 28; Stout v. Assurance Co., 56 Atl. 691; Ins. Co. v. Hegewald, 66 N. E. 902; Kaiser v. Ins. Co., 69 N. V. Supp. 344; Kernon v. Ins. Co., 44 N. E. 698; Ins. Co. v. Jester, 132 Pac. 130; Ins. Co. v. Hamilton, 48 111. App. 593; Embry’s Exr. v. Embry’s Devisees, 102 S. W. 239; Ins. Co. v. Garrett, 125 Fed. 589; Ins. Co. v. Payne, 46 Pac. 315; Ins. Co. v. Moore, 46 Pac. 1131; Mason v. Fire Assn., 122 N. W. 423; Christianson v. Ins. Co., 88 N. W. 16; Carlston v. Ins. Co., 94 Pac. 756; Ins. Co. v. Romeis, 15 Ohio C. C. 697; Stemmer v. Ins. Co., 33 Ore. 65, 27 Ins. L. J. 972; Bank v. Ins. Co., 85 Me. 68; Redner v. Ins. Co., 92 Minn. 306. (5) The award is void because the appraisers were partial and not disinterested; the company’s adjuster secured the appointment of its appraiser by fraudulent misrepresentations and suppression, because the umpire exceeded his jurisdiction and the appraisers adopted a wrong rule of law, and the award was so inadequate as to shock the conscience of fair-minded men. Kiernan v. Ins. Co., 44 N. E. 698; Pierce v. Sun Ins. Office, 147 N. T. Supp. 947; Bradshaw v. Ins. Co., 137 N. T. 137; Bradshaw v. Ins. Co., 32 N. E. 1055; Hall v. Assurance Co., 133 Ala. 637; Hickerson v. Ins. Co., 33 S. W. (Tenn.) 1041, 32 L. R. A. 172; Brock v. Ins. Co., 61 N. W. (Mich.) 67, 26 L. R. A. 623, 47. Am. St. 562; Bernhard v. Ins,. Co., 79 Conn. 388; Jerrells v. Ins. Co., 82 Kan. 320; Savings Assn. v. Ins. Co., 87 N. T. Supp. 1075; Van Gindertalen v. Ins. Co., 82 Wis. 112; Traub v. Ins. Co., 83 Md. 524; Mullen v. Ins. Co., 67 N. W. 445; Siebert v. Ins. Co., 106 N. W. 509; Bell v. Ins. Co., 75 S. W. 321; Schiff v. Ins. Co., 64 Atl. 63, 35 Ins. L. J. 820; Ins. Co. v. Traub, 83 Md. 524; Kirkham v. Ins. Co., 141 Pac. 1012; Baldinger v. Ins. Co., 141 N. W. 104; Perry v. Ins. Co., 137 N. C. 402; Baker v. Co., 57 Mo. App. 564; Bartless v. Exchange, 116 Wis. 450; Hilton v. Assurance Co., 42 Atl. 412; Ins. Co. v. Everett, 46 S. W. (Tex.) 95; Hoffman v. Ins. Co., 1 La. Ann. 216; Ins. Co. v. Taylor, 14 Colo. 499; Ins. Co. v. Johnson, 11 Bush. 587; Bradley v. Ins. Co., 11 Mich. 445. (6) A motion for a view is addressed to the discretion of the trial court, its ruling thereon will not be reversed on appeal in the absence of a showing of an abuse of discretion. Rick-man v. Ins. Co., 120 Wis. 655; State v. Hancock, 148 Mo. 488; Ellis v. Railroad, 131 Mo. App. 400; Springfield v. McCarthy, 79 111. App. 388; Shelby County v. Castetter, 7 Ind. App. 309; Jackson County v. Nichols, 139 Ind. 611; Banning v. Railroad, 89 Iowa, 74; Clayton v. Railroad, 67 Iowa, 238; Railroad v. Hoskins, 15 Ky. L. R. 238. (7) The evidence tended to show want of good faith in the defense, tended to prove that the company had connived at fraud and adopted a fraudulent appraisal and tried to force a settlement at .a sum less than the amount it conceded to be due, and to force a low settlement, threatened to keep claim in litigation for five years, and heuce the refusal to pay was vexatious within the meaning of the law. Gillispie v. Ins. Co., 168 Mo. App. 323; Stix v. Ins. Co., 175 Mo. App. 171; Williams v. Ins. Co., 189 Mo. 71; Keller v. Ins. Co., 198 Mo. 460; Cox v Ins. Co., 154 Mo. App. 464; Leahman v. Ins. Co., 183 Mo. App. 696.

      Note. — Opinion filed March 30, 191,6. Motion for rehearing and to transfer to Court in Banc overruled July 3, 1916. Certified to Reporter January 18, 1917.

   GRAVES, P. J.

This is an action upon an insurance policy commenced in Audrain County. The plaintiff lives in St. Louis, and the property insured was in St. Louis. Upon a trial before a jury plaintiff had a verdict for $7953.69 as her damages, $1000 attorneys’ fees and $100 penalty, or a total of $9053.69. Prom the judgment upon such verdict the defendant has appealed.

Distinguished counsel for appellant have made a painstaking analysis of the pleadings in this ease, and we adopt their statement of the pleadings. They say:

“The action is in the ordinary form upon a policy of insurance, claiming the full value of the insurance, as of a total loss in the sum of at least $18,000, because of a fire that occurred May 25, 1911, at 4961 Park View Place, St. Louis. This suit is for $8000 and attorneys’ fees and damages. The cause was brought to the November term, 1911, of the Audrain County Circuit Court. The answer denied the premises were totally destroyed, denied the loss was $18,000, and that there was a vexatious refusal to pay, and alleges the property was damaged not to exceed $5921.86. The answer further pleaded concurrent insurance for $8000 more (suits on the other three policies are pending at Mexico), and that defendant is only liable for one-half of $5921.86. The answer also alleged conditions in the policy respecting an appraisement in the event of disagreement as to the amount of the loss; that there was such an appraisement, and that the two appraisers appointed by the plaintiff and the defendant, to-wit, John A. Hurster and Chas. B. McCormack, together with the umpire, F. J. Remmers, selected by the appraisers, made an award of sound value $18,000 and loss and damage $5921.86, and defendant was only liable for one-half thereof, to-wit: $2960.93.
“The reply denied the validity of the concurrent insurance clause, admitted there was such insurance, but denied it was concurrent. Denied the loss was only $5921.86 and alleged it was total. The reply then proceeds to-admit the disagreement, and the appointment of the appraisers and selection of the umpire, and attacks the award, alleging: (a) that they did not appraise the loss, though they signed the award; (b) that they did not impartially or fairly perform their duties, that they were not competent or disinterested; (c) that plaintiff was induced to enter into appraisement by false and fraudulent representations by defendant that McCormack was fair, competent and disinterested and would replace the buildings as before the fire for the amount of the award;- (d) that McCormack suggested Remmers as umpire, and falsely and fraudulently represented to Hurster that Remmers was competent and disinterested, and would act in a fair and proper way, and that Hurster, relying thereon, agreed to Remmers as umpire, whereas both McCormack and Remmers were not competent or disinterested, but were, and for years had been, professional and frequent appraisers in fire losses for the insurance companies in St. Louis, and were biased, prejudiced and incompetent to act, all of that being known to defendant and the other companies; (e) that the appraisers and umpire would not, though often requested by plaintiff and his counsel, allow them to appear and be heard in connection with their determination of the matters, or the sound value of the buildings, or the loss by fire, and denied them the right to produce any witness or evidence in regard to said matters, or any matter involved in the appraisal; (f) that McCormack and Remmers privately got from outside parties evidence as to the value of parts of the insured property, without the knowledge of plaintiff, or letting her know thereof, or letting her offer testimony on the subject of the value, and ■ sent parties to visit the building without parties knowing what the building had been before the fire or what had been destroyed, it being impossible for them to learn facts, and then got bids from the parties as to what they would replace parts of the building for as before the fire, when said parties did not and could not know what had been the condition before the fire or what would be the cost of replacing such parts as they were to bid on; (g) alleges such parties were incompetent and incapable of doing the work, or making accurate reports, or making bids, or learning the facts, and that they guessed at, and incorrectly reported to the appraisers and umpire, their bids, and that they were wholly inadequate, and below the fair cost to replace such parts as they bid upon as they were before the fire, and that Hurster demanded of the other two that plaintiff be allowed to appear before the three of them, and be heard upon the matters, but McCormack and Remmers refused to let plaintiff, or her counsel, be heard before the appraisers or the umpire; (h) that the estimates and bids of said parties included different, cheaper and inferior materials from what was in the building before the fire, and was not intended by the parties to replace the building in the condition as before the fire; (i) that neither the appraisers nor the umpire knew what information said bidders had obtained or what they had figured upon in their bids, or wbat facts or information they used in making their bids, but nevertheless the appraisers and umpire used such false, incorrect, and inadequate bids in arriving at the award; (j) that the appraisers and umpire in arriving at the sound value, and the award, did not truly or correctly estimate or endeavor to estimate same, but carelessly, wrongfully, inaccurately and fraudulently guessed at same, and (k) neither McCormack nor Remmers ever meant to make a correct award, but intended to and knowingly placed the amount of loss at a sum which was in fact, and as they well knew, far below the true loss suffered by plaintiff, and that $5921.86 does not represent, as they well knew, the amount of loss; (1) that, before the award was signed and returned by the three men, Hurster objected and protested against it and informed the other two the loss was in excess of $5921.86 and at least $18,000, but they stated and promised Hurster they would replace the building in exactly the condition before the fire for $5921.86 if he would sign the award, and Hurster relying thereon, and supposing they would fulfill their promise as to so replacing, and supposing he was bound to join in the award, as they had the majority vote, signed his name to the award.
“The reply then alleges (m) that the damage was wide-spread and complete, and such as to make it impossible for the appraisers, or umpire, or anyone, to know what was the loss, without evidence of persons who knew the building as it was before the fire, so as to be informed as to same, and that the appraisers and umpire wrongfully and unlawfully refused to let plaintiff appear or produce any evidence on the subject, and any conclusion they arrived at was guess work, inaccurate, and far below the actual value before the fire; (n) that neither McCormack nor Remmers ever replaced, or offered to replace, the buildings in the condition they were in before the fire for the sum named in the award, and had refused, though so requested by plaintiff.
“This is a fair summary of all the allegations in the reply in a serial order, as we have endeavored to indicate the various specific charges by lettering them in this way, although they run along continuously in the reply.”

Whilst numerous assignments of error are made, only eight of them are briefed and argued here. Others seem to have been abandoned. The record is a very voluminous one (nearly 1000 closely printed pages), but the questions presented are largely questions of law. By that we mean that the facts are such as to make the verdict of the jury conclusive upon most, if not all, issues of fact. Points urged, with the pertinent facts, will be noted in order, in the course of'the opinion.

I. The first point made is that the suit was prematurely brought. This is based upon the theory that the suit was brought before the expiration of sixty days after the filing with the company of proofs w x t/ x of loss. The building was destroyed by fire May 25, 1911. The company and the plaintiff being unable to agree upon the damages suffered, submitted the. matter to three appraisers, one selected by each party and the third selected by these two. This appraisement was completed July 25th, just sixty days after the fire. Suit was filed October 2, 1911. Seemingly, as a matter of precaution, the plaintiffs made and filed proofs of loss September 23, 1911, and sixty days not having elapsed between this date and the date of filing the suit, this question of a premature suit is raised. There is neither law nor logic in the position.

As said by Rombattek, P. J., in Giboney v. Insurance Co., 48 Mo. App. 185, the question of a premature suit is in the nature of a plea in abatement and not a plea in bar. Such matters should be specifically pleaded. The answer in this does not invoke this plea in abatement. A mere general denial is not sufficient. A plea in abatement is in the nature of an affirmative defense, and must be specially pleaded to be available. This would be sufficient to dispose of this matter, but there are several other questions just as fatal to this contention of the defendant. One of flicse questions is, that, the defendant waived proofs of loss, when it entered into an arbitration of the amount of the damage under the policy. This was within sixty days after the fire, because the report of the appraisers or arbitrators was just sixty days after the fire. As said by Smith, P. J., in Murphy v. Insurance Co., 70 Mo. App. l. c. 87:

“After the arbitration provision is set in active operation there can arise no issue in respect to proofs of loss. In order to make out a prima-facie case the plaintiff was not required to produce proofs of loss timely and satisfactorily made, nor proof of waiver thereof, for the reason that the provision of the policy requiring the proofs of loss had, by the defendant’s own act, been in effect stricken from the policy and was not subject to he invoked by it. ’ ’

In Branigan v. Insurance Co., 102 Mo. App. l. c. 73, Goode, J., said:

‘ ‘Proofs of loss were waived by the company; for its adjuster conferred with the insured about the loss without demanding proofs, and conceded the company’s liability; a written agreement to arbitrate the amount of the damage was executed and no blank proofs were furnished the plaintiff.”

In the case at bar all the facts suggested by Judge Goode appear. The adjuster admitted liability and suggested that the total loss was about $9500. Mr. Young, the husband of the plaintiff, and acting for her, claimed the damages were much in excess of such sum. The arbitration followed. No blank proofs of loss were furnished by the company as required by statute. There was a complete waiver of proofs of loss. By pleading an arbitration, as the defendant does in this ease, a waiver of proofs of loss is admitted. In Bank v. Insurance Co., 109 Mo. App. l. c. 661, Smith, P. J., said:

“Again it appears that the plaintiff had brought a prior action on the policy here sued on and in which it was obliged to suffer a nonsuit. It further appears that in the answer in that action the defendant pleaded the arbitration clause and of that requiring proofs of loss and a failure of compliance on the part of the plaintiff. This answer the plaintiff, against the objections of defendant, was permitted to read in evidence. We cannot doubt that under the authorities it was competent 'evidence. Its allegations of fact were declarations or admissions which the plaintiff was entitled to give in evidence. [Bailey v. O’Bannon, 28 Mo. App. l. c. 46; Bowman v. Globe Heating Co., 80 Mo. App. l. c. 635; Spurlock v. Railroad, 125 Mo. l. c. 406, and cases there cited.] In it, as has been seen, were pleaded the arbitration clause of the policy and a failure to comply therewith. This amounted to an implied admission of waiver as to the proof of loss requirement.- The arbitration clause could have been invoked only on the theory that there had been a fire and consequent loss for which there was liability, but a disagreement alone as to the amount of such loss. In such cases compliance with all the other conditions must be conceded before there can be an-arbitration as to the amount to which the plaintiff was entitled under his policy. [Murphy v. Ins. Co., 70 Mo. App. l. c. 86.] ”

There are several other matters just as fatal to this contention as these two, but these are sufficient.

Now taking a step further, this record shows this waiver of proofs of loss to have been more than sixty days prior to the filing of this suit. The waiver took the place of the actual proofs of loss. The suit could not be prematurely brought, if not brought until after sixty days from this waiver of proof of loss. There is nothing in this contention of the defendant, and it is ruled against it.

II. The second contention of the defendant is thus couched in the brief:

“The court erred in overruling the defendant’s demurrer to the reply. The award was not void, but at most voidable, and plaintiff’s relief, if any, against the appraisement could only have been awarded in a court of equity. Section 1812, Revised Statutes 1909, does not apply.”

It is urged by the plaintiff that the clause in the contract providing for the ascertainment of the loss by appraisers is void, as being in conflict with the Act of 1909, Laws 1909, p. 347, now section 868, Revised Statutes 1909. In 1909 the Legislature added a new section to chapter 10, Revised Statutes 1899, to be known as section 899a. This new section reads:

“Any contract or agreement hereafter entered into containing any clause or provision providing for an adjustment by arbitration shall not preclude any party or beneficiary under such contract or agreement from instituting suit or other legal action on such contract at any time, and the compliance with such clause or provision shall not be a condition precedent to the right to bring or recover in such action.”

Chapter 10, Revised Statutes 1899, is pertaining to “Contracts and Promises,” and contained eleven sections. Prior to this amendment of 1909 the last section (Sec. 899) of the chapter, read:

“All parts of any contract or agreement hereafter made or entered into which either directly or indirectly limit or tend to limit the time in which any suit or action may be instituted, shall be null and void.”

By the Act of 1909 this was followed by the new section to be known as section 809a, supra. We note this connection and the subject-matter of the chapter purposely. It helps to get the legislative intent. When we read the whole chapter, it will be noticed that it pertains solely to contracts and promises, and not especially to arbitrations. Why it was placed in Revised Statutes 1909 in chapter 7, under the head of “Arbitration,” rather than in the more appropriate place of “Contracts and Promises” we do not know. When section 868, Revised Statutes 1909, is read in the connection the Legislature intended it to have, we believe its purpose was to render void provisions in contracts which enforce arbitration or settlements by means of appraisers under insurance policies. The policy in this case is such as forced an appraisement of loss if the parties could not agree. We believe that this statute struck at just such contracts. We cannot read the last section of old chapter 10, Revised Statutes 1899, and know that the Legislature had that section before it when it added the new section, without concluding that the purpose of the new section was to kill such clauses in a contract as we have here.

But all this availeth not the plaintiff in this ease. This contract was entered into in 1907 and ran for a period of five years. The contract antedated the Act of 1909. This act only applied to contracts “hereafter entered into,” and hence did not and could not affect this contract.

But defendant’s trouble is not over by the foregoing holding. The purpose of this clause of the contract was a means of getting to a settlement of the difference of the parties as to the amount of the loss. The purpose of the clause in the policy is to fix the amount of his loss under the policy, as if the parties had agreed to the amount of such loss and the company had paid it. In other words, this clause of the policy was designed to procure an agreement and settlement as to the amount of the loss. In this case such settlement is set up as a bar to a full recovery on the policy. It is not a bar to the action, and is not so pleaded, but it is pleaded as a bar to a recovery in an amount greater than that fixed by the appraisers. This court has held that such assessment by appraisers of the amount of damages is not an award by arbitration, under our statutes or the common law as to arbitration: Zallee v. Ins. Co., 44 Mo. 530. But this same case further held:

‘ ‘ The written agreement, entered into after the fire, appointing the appraisers, and by which the parties agreed to accept their appraisement, was a practical carrying into effect of the stipulations of the policy. These stipulations having actually been complied with and an appraisal had in conformity thereto, no good reason is perceived why the parties should not be bound by the' result. That result cannot, and ought not to, be avoided on the ground that the appraisers were not sworn. They acted as appraisers, and not as arbitrators. The reference to them was not a submission to arbitration in the legal sense, but a just and reasonable mode of fixing values — the value of the injured goods before and after the fire, the difference representing the amount of loss or damage.”

The same case holds that the right to sue upon the policy is not barred by the appraisement, because it says the cause of action is not merged into an award, as in arbitrations. It does hold, however, that the appraisement is binding as to the amount. To this holding we should add “if such‘appraisement was not fraudulently procured.”

It must be said that this appraisement is not a discharge of the cause of action, and it perhaps should be further said that it does not fall strictly within the letter of section 1812, Revised Statutes 1909. This section reads:

“Whenever a release, composition, settlement or other discharge of the cause of action sued on shall be set up or pleaded in the answer in bar to plaintiff’s cause of action sued on, it shall be permissible in the reply to allege any facts showing or tending to show that said release, composition, settlement or other discharge was fraudulently or wrongfully procured from plaintiff, and the issue or issues thus raised shall be submitted with all the other issues in the case to the jury, and a general verdict or finding upon all the issues, including the issue or issues of fraud so raised shall be sufficient.”

This section really contemplates things done by the parties themselves, and things which if done knowingly and without fraud would discharge the cause of action.

It is pretty generally held that these appraisements under clauses of an insurance policy, such as we have here, do not discharge the cause of action. But we do say that it is conclusive as to the amount of damages. To that extent it is a partial release or discharge of the cause of action. And whilst it is not the direct action of the parties, it is the action of the parties through their selected agents.

These two matters are so similar in force and effect* that in our judgment, if this appraisement, which is of itself a partial release and discharge of the cause of action, is procured by fraud of any kind upon the part of one of the parties, and such party set up the appraisement, as here, in bar of a full and complete recovery, the other party can under this statute plead by way of reply the fraud, and have such fraud determined by a jury. In other words the statute is broad enough to cover a partial release as well as a full release. In so holding, we are not unmindful of the contrary ruling by the St. Louis Court of Appeals in Shoe Co. v. Insurance Co., 178 S. W. l. c. 248.

That court passes the question with a mere statement. There is no discussion of the reason of the rule. The statute specifically goes to releases made by one party to another. A release may be in full or it may be a partial release. If in full it can be pleaded as a complete bar to the action. If a partial release, it can be pleaded as a partial bar to the action. In either case, if fraud taints the release the remedy should be the same in both eases, and we believe the spirit of this statute covers the appraisement in this case.

Take the facts. The policy says the company and the insured shall try to agree upon the loss, but that if they cannot agree then each party shall select an appraiser and these two shall select an umpire, and the report of two of them shall be binding. In this particular case the evidence in the record tends to show that defendant’s adjuster was of opinion that the damages to the building was about $9500 and Mr. Young, agent for plaintiff, was asserting damages much in excess' of that sum. Under these circumstances the policy forced an appraisement, the effect of which, if it stands, is to give the insurance companies covering this loss a release of all claimed damages, except about $6000. We believe the statute broad enough to cover such case as is here presented. In other words, the report of the appraisers is a release of a part of plaintiff’s claim or cause of action, and if not fraudulently procured binds the plaintiff as to the amount of damages.

It should be further noted that the statute uses the word “settlement” in addition to the word “release.” The word “settlement” has at times a broader significance than of payment and satisfaction. It may and often does mean an agreement by which parties having disputed matters between them reach or ascertain what is coming from one to the other. In this sense this appraisement may also be considered as a settlement agreement between the parties, and if procured by fraud, it falls within the statute. It is a settlement of the amount of damages made by the agents of the parties under and per force of the contract. The fraud of either party, or their agents should avoid it, and under the statute the question of fraud should be tried by jury.

III. But there is another sufficient answer to the claims of the defendant. This reply was at least good in equity. It charged the procurement of this particular appraisement to have been in fraud of plaintiff's rights. Concede for the purpose of this point, that the reply was equitable in nature, and that it would thrust the case from the law side to the equity side of the court, yet this does not help the defendant. The defendant sat by and made no objection to the trial of the case before a jury. The defendant proceeded to try the case as one at law, without objection, and the question comes too late in this court.

The demurrer was properly' overruled even under defendant’s contention here. That part of the reply stricken at by the demurrer set up facts which in equity would have entitled the plaintiff to relief from this appraisement. At most the reply could only change the issue to one in equity rather than at law, and the demurrer should have been overruled. This ruling properly made, then when defendant without'objection proceeded to try the case as. one at law, he is estopped here.

TV. It is next asserted that appraisements of this character will not be set aside save on clear and convincing evidence of fraud, misconduct or toistake. For the purpose of this point we may concede this as a proposition of law.

We shall not go into the details of the vast volume of evidence offered in support of plaintiff’s reply. Suffice it to say that it shows some shocking conduct upon the part of the appraiser selected by the company and the umpire agreed to by the two other appraisers. Practically all the allegations in this reply were well sustained by the evidence. There was ample evidence upon which the jury could find fraud, and we are powerless to disturb their verdict, upon that question. If it was a question in equity, and the judgment here was one in equity setting aside this appraisement, we would heartily concur in the judgment. We need not go further on this contention.

Y. It is next urged that the court erred in refusing to have the trial jury go to St. Louis, and view the property. It is true that the evidence as to the condition of this building after the fire was conflicting. But it must also be said that the evidence upon each side was clear and fully descriptive of the respective claims of the adverse parties. The trial court had all the facts before him, and we cannot say as a matter of law that he abused his discretion in refusing this request of the defendant. Such things are largely discretionary, and it is only when there has been a flagrant abuse of this discretionary power, that this court will interfere.

Whilst it is true the trial court seems to have put his refusal upon the ground that he was not empowered to make such an order, yet, although he put it upon that ground, his refusal amounted to nothing more than a denial to defendant of a mere discretionary right, and if under the facts there was no abuse of a sound legal discretion in the refusal, the defendant is not harmed by the statement of an erroneous ground by the court.

The refusal, upon whatever ground put, was not an abuse of a sound legal discretion. The court should not have stopped the trial of this case for practically two or three days to permit a jury to go from Mexico, Missouri, to St. Louis, Missouri, to examine the wreckage of this house. The witnesses had given the jury the facts clearly.

VI. It is next insisted that there was error in admitting evidence on a vexatious refusal to pay the loss. The statute reads:

“In an action against any insurance company to recover the amount of any loss under a policy of fire, life, marine or other insurance, if it appear from, the evidence that such company has vexatiously refused to pay such loss, the court or jury may, in addition to the amount thereof and interest, allow the plaintiff damages not exceeding ten per cent on the amount of the loss and a reasonable attorneys’ fee; and the court shall enter judgment for the aggregate sum found in the verdict.” [R. S. 1909, see. 7068.]

There is evidence in this case' that the defendant’s own adjuster estimated the damages at $9500. There is further evidence that they threatened to keep the case in court for five years if plaintiff did not accept the known fraudulent appraisement. These and other matters in the record were sufficient to submit the matter to the jury, and its finding is binding upon us as to the fact.

The foregoing covers the substantial contentions of the defendants, as found in the brief. The judgment should be affirmed and it is so ordered.

All concur, Bond, J., in result.


author: BROWN, C. PER CURIAM.

text:
    ROSA BARBER v. HARTFORD LIFE INSURANCE COMPANY, Appellant.
    Division One,
    July 3, 1916.

    1. CONSTITUTIONAL LAW: Insurance: Vexatious Delay: Attorney’s Fee. The provision in section 7068, Revised Statutes 1909, authorizing the imposition of damages and attorney’s fees for vexatious delay in paying an insurance policy, is not violative of section 10 of article 1 of the Constitution of the United States, or of section 1 of the Fourteenth Amendment, or of sections 10 or 30 of article 2 of the Constitution of Missouri.

      2. FORMER ADJUDICATION: Objection to Pleading. Objection that the judgment of a court of another State set up as an adjudication of the matter in controversy, is not well pleaded, ought to be directed against the answer before trial; and, although it would probably have been available if timely made, should not be allowed, if its allowance would, during the progress of the trial, force an amendment of an answer which by reasonable construction raises the constitutional point which it asserts as a defense.
    3. INSURANCE: Forfeiture: Failure to Fay Assessment, An insurance company which refuses to pay a policy after the insured’s death because he had failed to pay an assessment against him, must show that there was such an assessment, and that it was a liability which he had by his contract bound himself to pay. And • the burden is on the company to show a performance on its part as strict and literal as the performance it seeks to exact from him. Unless the assessment is shown to have been made in accordance with the contract, his widow cannot be deprived of the indemnity because of his failure to pay the assessment.
    4. -: -: -: Application of Assessments. Where an insurance company has accumulated a large fund, the interest on and further accretions to which were to be distributed among certificate-holders in proportion to the amount of insurance held by each, by applying it in reduction of their future assessments, an assessment which fails to credit the amount so applicable is excessive, and an attempt to forfeit a policy for failure to pay it is invalid.
    5. -: -: -: Excessive. A grossly excessive assessment, made without contractual authority and in pursuance to a policy of accumulating large funds at the expense of the • certificate-holders and withholding them from distribution, is invalid.
    6. -: -: -: Former Adjudiction. A former adjudication by a court of general jurisdiction in the State of the Company’s incorporation, for a policy holder and all others similarly situated, that it was proper that margins of excessive assessments might accumulate into a mortuary fund, to be used in the payment of death losses in advance of assessments, to an amount limited in the judgment, was not an adjudication that a further excessive assessment would be valid, when the company had on hand, applicable to mortuary claims, at the time the assessments were made, a mortuary fund far in excess of such amount.
    7. -: -: -: Replenishment Fund. An assessment ■made for the replenishment of such fund in an amount grossly in excess of the amount so adjudicated and not required to pay losses accrued, is void.
    8. -: -: Payment of Dues. Where by the terms of the policy certain dues were payable annually on October 1st of each year, the company cannot make one-fourth of the amount due for ' the quarter between March 1st and June 1st and forfeit his policy for failure to pay that fourth before June 1st.
    9. -:-: Assessment Without Authority from Directors. The levying of assessments and the determination of the amount of a mortuary fund to be kept on hand for the payment of death losses as they occur without waiting for an assessment, are the highest and most important acts devolved upon an assessment insurance company; and where its charter declares that “all the affairs of said corporation shall be managed and controlled by a board of not less than seven directors,” the executive officers are without authority to levy assessments and determine the amount of the accumulated mortuary fund otherwise than under its direction to be shown by its records.
    10. -: Vexatious Delay. The whole question of vexatinous refusal or delay to pay an insurance policy is a matter of fact to be determined by the jury.
    Appeal from Johnson Circuit Court. — Eon. C. A. Calvird, Judge.
    Affirmed.

      Jones, Eocker, Eawes é'Angert, J. W. Suddath S Son, and James G. Jones, Jr., for appellant.
    (1) The Connecticut court was a court of competent jurisdiction to determine the question of the right of the company to maintain the mortuary fund and its decree was binding upon the company and all its members. Ins. Co. v. Ibs, 237 U. S. 662; Royal Arcanum v. Green, 237 U. S. 531; Condon v. Mutual Reserve, 80 Md. 90; Clark v. Mutual Reserve, 14 App. D. C. 154; Taylor v. Mutual Reserve, 97 Va. 60; State ex rel. v. Shain, 254 Mo. 78. (2) The issue as to the right and propriety of maintaining the mortuary fund was involved in the Connecticut case and in the case at bar. Ins. Co. v. Ibs, 237 U. S. 662; Southern Pacific Co. v. U. S., 168 U. S. 1; Klein v. Ins. Co., 104 U. S. 88. (3) The court below did not give full faith and credit to the judicial proceedings in Connecticut and refused to give any effect whatever to the decree of the Connecticut court, contrary to the command of the Federal Constitution. Ins. Co. v. Ibs, 237 U. S. 662; Royal Arcanum v. Green, 237 U. S. 531; Notions v. Johnson, 24 How. 195; Huntington v. Attrill, 146 U. S. 657; Ins. Co. v. Harris, 97 U. S. 381; Harris v. Balk, 198 U. S. 215; Selig v. Hamilton, 234 U. S. 652. (4) The plaintiff in this case stood as to the Dresser case in privity with her husband, and he was by representation a party to the Dresser case, and is bound by the decree in that case. Ins. Co. v. Ibs, 237 U. S. 662; Wallace v. Adams, 204 U. S. 415; 2 Perry on Trusts, sec. 885; 2 Beach on Trusts, sec. 498; Scott v. McDonald, 165 U. S. 116. (5) It was error to instruct the jury that it was incumbent upon the board of directors to levy this assessment. Fee v. National Assn., 110 Iowa, 271; Ins. Co. v. Birnbaum, 116 Pa. St. 565; Niblack on Benefit Societies, sec. 280; 2 Cooley’s Briefs on Insurance, p. 1027.

      Nick M. Bradley, Robert Kelley and Charles E. Morroiv for respondent.
    (1) Assessment 126 is void because not made by the directors, (a) The charter places the management of the affairs of the corporation in the board of directors. The directors at no time delegated this important power to its ministerial officers, and the alleged assessment made by the president and secretary is void, (b) If the assessment calls for the exercise of discretion on the part of the directors it cannot be delegated. Ins. Co. v. Chase, 56 N. II. 341; Bacon on Benefit Societies, see. 377; 10 Cyc. 770, 906-910. (c) The burden is on defendant to show the assessment was made by proper authority. No presumption exists in its favor. Niblack on Benefit Soc., sec. 252. It is incompetent to show that it was a custom of the president and secretary to make assessments without authority, unless it further appears that Frank Barber had knowledge of the custom. No such knowledge is shown. Niblack on Benefit Soc., sec. 252; Underwood v. Legion of Honor, 66 Iowa, 134. (d) A corporation must speak through its record, and the proof that assessment 126 was made can only be shown by the record. In this case the testimony showed no record was made or kept of the alleged assessment and it cannot be proved by parol. Hannum v. Waddill, 135 Mo. 162. (2) Burden is on defendant to show the assessment was necessary, not excessive and legally made. No presumption of right acting in the levying will be entertained. Hannum v. Waddill, 135 Mo. 153; Eamey v. Modern Woodman, 79 Mo. App. 385; Agnew v. A. O. U. W., 17 Mo. App. 254; Puschman v. Ins. Co., 92 Mo. App. 640; Johnson v. Ins. Co., 166 Mo. App. 275; King v. Ins. Co., 133 Mo. App. 612; Wayland v. Indemnity Co., 166 Mo. /up. 221; Settle v. Ins. Co., 150 Mo. App. 520; lbs v. Ins. Co., 121 Minn. 310. A policy-holder in an assessment company cannot be subjected to a forfeiture until he refuses to pay a lawful demand. If the assessment in question was illegal for any reason, the defendant is without legal reason in refusing to pay the loss. Johnson v. Ins. Co., 166 Mo. App. 275; Craig v. Ins. Co., 136 Mo. App. 5; Settle v. Ins. Assn., 150 Mo. App. 529. (3) If the assessment in question was excessive after making reasonable allowance for lapses and failure to make collections, that is, if the amount actually assessed exceeds materially the amount required to meet death claims, it was illegal and void, and the refusal to pay the same will not work a forfeiture. King v. Ins. Co., 133 Mo. App. 620; Johnson v. Ins. Co., 166 Mo. App. 261; lbs. v. Ins. Co., 121 Minn. 310. (4) The right to assess must be strictly construed and it can be exercised only when the conditions prescribed in the contract of insurance exist. Wayland v. Indemnity Co., 166 Mo. App. 221; Ins. Co. v. Giese, 49 Mo. 239; 2 Joyce on Insurance, sec. 1310; Craig v. Ins. Co., 136 Mo. App. IQ. “Forfeitures are not.favored in the law, and before the courts will declare one it is essential for the party insisting upon it to show strict compliance with every term said to afford the basis for thus summarily divesting the right.” Settle v. Insurance Assn., 150 Mo. App. 527. (5) The policy does not authorize assessments for future losses. Unless the Dresser decree should have been admitted in evidence, and unless this court is bound by that decree, the policy sued upon does not authorize the levy of an assessment for losses which may be anticipated to occur in the future. And in the absence of such authority, an assessment made for that purpose is void. Under all the authorities, an assessment made to pay death losses which have in fact been paid is void. Ibs v. Ins. Co., 121 Minn. 310; Johnson v. Ins. Co., 166 Mo. App. 261; King v. Ins. Co., 133 Mo. App. 612. (6) The validity of the assessment must be determined by the condition upon the date made. Death losses not then considered or mentioned in the notice cannot be considered. Ibs v. Ins. Co., 121 Minn. 313; 23 Cyc. 1527. The plea nowhere alleges that the court rendering the judgment had jurisdiction either of the parties or the • subject-matter. This must be alleged. State to use v. Brooke, 29 Mo. App. 289. (7) Res adjudicate/, must be specially pleaded. Frauerman v. Lippincott, 39 Mo. App. 478; 23 Cyc. 1523. (8) The defendant did not offer the whole record in the Dresser case, but simply what purports to be the final judgment. It did not contain.the pleadings so that the real issues could be determined. The court did not commit error in refusing it. The entire record must be offered. Crone v. Dawson, 19 Mo. App. 214; 'Williams v. Williams, 53 Mo. App. 623; 23 Cyc. 1568. It does not show particular matter in issue. “In order to constitute a former adjudication it must affirmatively appear that the matter in dispute was put in issue and tried.” Drainage Dist. v. Turney, 235 Mo. 94; Turnverein v. Hagerman, 232 Mo. 703; Pierce v. Pierce, 139 Mo, App. 419; Dickey v. Henri, 48 Mo. App. 120; 23 Cyc. 1536-37. The Dresser judgment sought to be enforced against the plaintiff was not rendered until March 23, 1910, after the alleged forfeiture had taken place. Ordinarily as to the rights of parties to an action, a judgment takes effect upon them as they exist at the time of its rendition, and not as they existed at the commencement of the suit or before that time. This judgment ought not to be given a retroactive effect so as to bind this plaintiff by relation before it was rendered. 23 Cyc. 1106; Bacon v. Kimmel, 14 Mich. 201; Johnson County v. Hart, 3 Wyo. 563. (9) Sec. 7068,- B. S. 1909, authorizing the assessment of ten per cent damages and attorney’s fees for vexatious delay in paying policy of life insurance is constitutional. Keller v. Ins. Co., 198 Mo. 440; Farmer Ins. Co. v. Dobney, 189 U. S. 301; Fraternal Mystic Circle v. Snyder, 227 U. S. 497.

      Note. — Opinion filed March 30, 1916. Motions for rehearing and to transfer to Court in Banc overruled July 3, 1916. Certified to Reporter January 18, 1917.

   BROWN, C.

This is an action at law on policy number 174,416 issued by the defendant September 4, 1893, insuring the life of Frank Barber for $2000 for the benefit of the plaintiff, who was then his wife and is now Ms widow, and for damages for vexatious refusal to pay the loss under the provisions of section 7068, Revised Statutes 1909. Mr. Barber died June 5, 1910. There was a judgment in the circuit court for $2976, including $200 damages and $500 attorney’s fee awarded by the jury for vexatious refusal to pay, from wMch this appeal is taken. The defendant is a life insurance company of Connecticut. It had a business department called the “Safety Fund Department,” which was again divided into the “Men’s Division” and “Women’s Division,” which issued policies payable on the assessment plan, and tMs policy was of course in the ‘Men’s Division,” and was called a “Certificate of Membership Safety Fund Department.”

The answer pleads that this certificate was conditioned upon the payment of periodical assessments; that on January 29, 1910, an assessment designated as “Call 126” was levied on it against Barber for $13, with dues amounting to $1.50, which became due by the terms of the certificate on March 1, 1910; that Mr. Barber failed to pay it on or before March 20th, to which time it had been extended; and in consequence thereof the insurance was, by the terms of the certificate, forfeited. The issues in the case grow out of this circumstance. It also pleads, in effect, that an action had been brought in the New Haven .County Superior Court of Connecticut, by one Dresser, holding a similar certificate of membership in the safety fund department of defendant, on his own behalf, as well as on behalf of all others similarly situated, including the plaintiff, wherein the rights of plaintiff were fully adjudicated; that the mortuary fund of said department and the trust thereby created is being administered strictly in accordance with the terms of said certificate and trust as construed and adjudicated by said court, whereby defendant is without authority to pay out of said mortuary fund the amount of any certificate of membership where, as in this case, the member has failed or refused to pay the assessment levied against him to maintain said fund. It also denied the right of plaintiff to recover the damages and attorney’s fee sued for, because the provisions of said section 7068 authorizing the imposition of such damages and attorney’s fee are unconstitutional* and void as being in violation of section 10 of article 1 of the Constitution of the United States, and of section 1 of the Fourteenth Amendment thereto, and of section 30 of article 2, and of section 10 of article 2, of the Constitution of Missouri; and because the construction thereof by the courts of this State constitutes a rule of judicial construction violative of said provisions of the State and Federal constitutions, and because said section 7068, if applied to this case, and in its application to the facts of this case, denies the defendant due process of law as guaranteed, by the State and Federal constitutions. These matters were all put in issue by replication.

The defendant on the trial offered in evidence the record in the Dresser case duly certified under the act of Congress in such cases made and provided, which was, on plaintiff’s objection, excluded, to which defendant duly excepted.

The policy sued on, so far as applicable to the questions in this case, is as follows:

“In consideration of the representations, agreements, and warranties made in the application herefor, and of the admission fee paid; and of $3 per annum on each $1000 of the indemnity herein provided for, for expense dues, to be paid as hereinafter conditioned, and of the further payment of all mortality calls proportioned to the said indemnity, levied against the herein-named member to form a mortuary fund for the payment of all indemnity matured by deaths of members, and to create a safety fund as hereinafter described, which mortality calls, to be levied upon all the members in the department wherein this certificate is issued whose certificates are in force at the date of such deaths, shall be made according to the table of graduated mortality ratios given hereon, and as further determined by their respective ages and the aggregate indemnity of the dates of.such deaths, with due allowance for discontinuance of membership (one-third of the proceeds of such mortality calls to be applied toward said safety fund until the sum of $10 on each $1000 indemnity aforesaid shall have been thus applied, when the basis of all subsequent mortality calls shall be two-thirds only of the table given hereon) does hereby issue this certificate of membership in its safety fund department to Frank Barber (herein called the member) of St. Louis County, of city of St. Louis, State of Missouri, with the following agreements:
“That ninety days from the receipt by the president or secretary of said company of satisfactory proofs, in accordance with forms furnished upon notice of death and with full information as to the manner and cause of the death of the herein-named member while this certificate is in force, all the conditions hereof having been conformed to by the member, upon presentation and surrender of this certificate properly receipted, there shall be due and payable, out of the aforesaid mortuary fund and not otherwise, the indemnity of $2000 (less the balance unpaid, if any, of the stipulated contribution to said safety fund, with fifty per cent added, together with the unpaid installments of annual expense dues and any mortality or other charge against the member payment of which is not matured), to his wife, Bosa Barber, if living, otherwise to his legal representatives. All such payments to be made at the home office of said company in lawful money of the United States.
“That said company will deposit said sum of $10, when received, with the trustee, named in a contract with it (of which a copy is printed hereon), as a safety fund in trust for the uses and purposes expressed in said contract; and shall make a semiannual division of the net interest received therefrom by it pro rata among all the holders of certificates in force in said department at such times, who shall have contributed five years prior to the date of any such division their stipulated proportion of said fund, by applying the same to the payment of their future dues and assessments; and that, whenever said fund shall amount to $1,000,000, all subsequent receipts therefor shall be divided by the said company in like manner as the interest.”

The department in which this certificate was issued was organized about 1879, on the following plan: Each person applying for insurance under the plan was to pay an admission fee of $8 for $1000; $12 for $2000; $15 for. $3000; $18 for $4000; $20 for $5000; $40 for $10000, and the medical examination fee estimated at $3 to he paid to the physician; also to pay annually for the sole purpose of paying all expenses of said insurance $3 for each $1000 of insurance; and also to pay, as mortuary payments assessed to pay death losses, an amount graduated according to the policy holder’s age at the time of the assessment, the amount of his policy, and the aggregate indemnity in force with the company at the time of each death, with due allowance for discontinuance of membership, one-third on each call to be applied toward a safety fund until the sum of $10 for $1000 had been paid “when the basis of all subsequent mortality calls shall be two-thirds only” of the amount named in the table indorsed on the certificate. This safety fund was to be deposited with the “security company, ’ ’ a corporation formed to take care of it for an additional compensation out of this income. The earnings of this fund after it should reach $300,000 and all contributions to it after it should reach $1,000,000 in United States bonds par value were to be divided among certificate-holders of five years’ standing in proportion to the amount of their certificates; and if the aggregate amount of the certificates should fall below $1,000,000 the principal of the fund should be similarly divided. The fund accumulated rapidly, and in 1889 the Security Company had ceased to buy United States bonds,, and in that year, notwithstanding its contract with policyholders, the appellant secured the passage of a resolution by the Legislature of Connecticut authorizing the investment of the fund in other securities. Under this permission the fund was invested in other securities, including stocks of the New York, New Haven & Hartford and St. Joseph, Denver City & Southern railroad companies and of Hartford banks. In 1899 they ceased the issue of certificates in this department and thus practically put an end to the influx of $10 contributions which, the fund having reached its maximum of $1,000,000 must be divided among the certificate-holders. Things were in this condition when the Dresser suit was instituted in 1907 and went to final judgment March 23, 1910. The court ruled that the Act of 1889 was unconstitutional and void as impairing the obligation of the contract of the company with the certificate-holders and found that as a result of investments in other securities than United States bonds losses had been incurred, so that the actual value of the fund remaining was somewhat less than $1,000,000; that excessive charges had been made by the Security Company for its management, so that the court required over $40,000 of this compensation to be returned and distributed to the certificate-holders. It also found that, although the company had levied assessments to cover the full amount of the certificates for each death during, the previous quarter, they deducted, in making payment, from the face of such certificates, a certain proportion of the assessment that would have been due from the holder had he survived the quarter, so that there was a margin arising between the amount of the losses paid and the amount of losses assessed for, which had accumulated in the mortuary fund and had been used for the payment of losses in advance of the receipt of the assessments by which it was reimbursed. This accumulation amounted to “many thousands of dollars,” which belongs to the certificate-holders. The court held that it'was proper that the defendant should hold some such fund for the purpose of enabling it to pay losses promptly, but that it was not necessary that the company should hold more than the amount of one average quarterly assessment for the previous year.

After reciting these facts the judgment proceeded:

“Whereupon It is adjudged and decreed that said mortuary fund of the men’s division arising from the excess of the amount received for quarterly assessments over the amount necessary for the payment of losses for said quarter, as above described, or from any other sources, together with all income or interest thereon, belongs to the certificate-holders in the men’s division of the safety fund department, and the Insurance Company is reasonably entitled to hold the same as a necessary and proper fund for the settlement of death claims on the certificates of insurance in said department.”
It then ordered that “any excess in said fund above the average of the four preceding quarterly assessments in said men’s division shall be distributed to the certificate-holders in diminution of assessments.”

Tbe call in question is as follows:

Hartford Life Insurance Company.
Hartford, Conn., January 29, 1910.
Special Notice of Quarterly Call No. 126.
Your next quarterly call will fall due and be payable June 1, 1910. Frank Barber, 4201 Pleasant St., St. Louis, Mo.
2-174416 15
This call which will be due March 1, 1910, is made to meet 119 deaths (as shown by accompanying list), benefits, $322,378.48, and expenses on your policy, as follows:
For mortality call ............................................$13.09
For quarterly dues to June next................................ 1.50
Credit........................................................$14.59
Dividend to be applied if payment be made...................... 1.40
Amount due .........................................'.........$13.19
Payment will not be accepted later than Mar. 5, 1910, unless residence is on or west of the meridian of Salt Lake, Utah, in which case payment will be accepted up to and including Mar. 15, 1910.
Unless the payment called for by this notice shall be paid to the company at its home office by or before the day it falls due the policy and all payments thereon will become forfeited and void.
Return this notice with remittance payable to Hartford Life Insurance Company.
Make all remittances by draft, check, P. O. or express money order when possible. Letters containing currency must be registered.
See over for special notice.
Special Notice.
If the payment of the above quarterly call is not received at this office on or before Mar. 5. 1910, the last day allowed for payment in the above notice, a second notice will be mailed to the policy holder by registered letter, giving until Mar. 20, 1910, to remit, and the same charge will be made for this second notice as is fixed by the law of Massachusetts, namely, fifty cents.
Every member whose payment does not reach this office on or before Mar. 5, 1910, will be obliged to pay fifty cents fee in order to have the policy unconditionally reinstated.
After Mar. 20, 1910, the limit allowed for payment under the registered notice, the company reserves the right to require a medical examination as a condition of reinstatement.”

The credit of $1.40 is Barber’s share of the excessive compensation taken by the Security Company for the care of the safety fund. The amount of this fund, for which charges were being made up to and at the time of the Dresser trial, was more than $1,000,000.

The assessment in question was made as of December 31, 1909. At that time all of the one hundred and nineteen death losses enumerated in the notice had been paid except fifteen, aggregating $41,000, and there was remaining in the mortuary fund $74,938.92; and the interest on the safety fund was paid into it on the same date, making an aggregate of $94,386.31 then in the fund. The defendant introduced evidence showing that there were unpaid death losses amounting to $128,166.67 or more than $87,000 in addition to those included in this assessment still unpaid, and accounted for this fact by saying that the time of payment of losses included in the previous assessment had been extended, so that the collections for the payment of those losses had not yet been made.

The appellant asked upon the trial and the court refused. an instruction to the effect that there was no evidence that the refusal of the defendant to pay the sum sued for was vexatious, and for that reason they should not allow any sum for damages or attorney’s fees should they find for the plaintiff. It also, both upon the trial and in its motion for a new trial, contended that the action of the court in excluding the record in the Dresser case violated section 1, article 4, of the Constitution of the United States, providing that “full faith and credit shall be given in each State to the public acts, records, and judicial proceedings of every other State.” Such further reference will be made to the record as seems to be necessary.

I. The defendant pleaded in its answer that the provision of section 7068, Revised Statutes 1909, was unconstitutional and void and therefore could not be made ^he basis of any recovery for damages and attorney’s fees in this suit. This claim has been rejected by this court and the Supreme Court of the United States until it has become too stale to serve as a foundation for our jurisdiction. [Keller v. Home Life Insurance Co., 198 Mo. 440; Fidelity Mutual Life Assn. v. Mettler, 185 U. S. 308; Iowa Life Insurance Co. v. Lewis, 187 U. S. 335; Farmers’ Ins. Co. v. Dobney, 189 U. S. 301; Fraternal Mystic Circle v. Snyder, 227 U. S. 497.] It is probably in view of these repeated decisions and others to the same effect that the appellant has not favored us with a brief or argument upon this point.

II. Our jurisdiction rests solely upon the point that the trial court erred in rejecting the record of a judgment of the superior court of Connecticut for New Haven County in the case of lbs and others, holders of like certificates in the safety fund department of defendant, suing on behalf of themselves and of all others similarly situated, against this defendant, the Security Company named in the certificate here sued on, together with the members of the board of directors of defendant for the time being. This case went to final judgment in the Connecticut court March 23,1910. By this judgment the court attempted to make some radical changes in the contract here sued on and this attempt, applicable to this case in some respects which we shall notice, has received the indorsement of the Supreme Court of the United States in Hartford Life Insurance Co. v. Ibs, 237 U. S. 662.

The grounds upon which the plaintiff objected to the admission of this record were many, but its exclusion fairly raised the constitutional question whether or not, in that action, full faith and credit was given to the record of a judicial proceeding in the Connecticut court as required by the Federal Constitution. Among these objections were some relating to its certification and completeness, but these are shown to have been groundless by an additional abstract. Objection was also made that the judgment was not properly pleaded as an adjudication by the Connecticut court of the matter involved. This objection would probably have been well taken had it been directed against the answer before trial, but its effect, so far as applicable to the case, was generally stated and ought not to have been allowed to interfere with the trial by forcing an amendment during its progress. We think the constitutional point was well taken and shall consider the case in the light of the rejected evidence.

The legal maxim that the law abhors a forfeiture carries with its own reasons. One who, like this respondent, has for seventeen years regularly contributed to a fund for the indemnity of others ought- not to be deprived of all the benefit which he himself was to receive as his compensation otherwise than by the honest performance of all the conditions upon which he had agreed to surrender it. He has placed himself in the hands of others who for their own profit have assumed the duty of his protection, and they can have no right to take his money and refuse the protection other than the right which grows out of the strict performance of their own undertaking; and where, as here, they seek after his death to appropriate to themselves the benefit of the insurance for which he has stipulated because of his failure to pay an assessment against him, it is but just that they should show that there was such an assessment, and that it is a liability 'which he had bound himself by his contract to pay. The burden falls justly upon them to show a performance as strict and liberal as the performance they seek to exact from him. This is not a favor which the law grants him, but simply the fair and equal treatment to which every one is entitled before the law, which abhors an injustice. The assessment is the ground of his liability, and until it is shown to have been made in accordance with the contract he cannot be deprived of the indemnity which the contract gives him. [Hannum v. Waddill, 135 Mo. 153; Settle v. Insurance Assn., 150 Mo. App. 520, 528; Wayland v. Indemnity Co., 166 Mo. App. 221; Earney v. Modern Woodmen, 79 Mo. App. 385; King v. Hartford Life Ins. Co., 133 Mo. App. 612; Craig v. Insurance Co., 136 Mo. App. 5; Baker v. Insurance Co., 51 Mich. 243; Insurance Co. v. Comfort, 50 Miss. 662; 2 Cooley’s Briefs on Insurance, pp. 1871, 1872.]

III. The defendant does not contend that an assessment should be made for the payment of a death loss until a death has occurred. [Bacon on Benefit Societies and Life Insurance, section 377.] But it ' J says that this rule was modified by the decree of the Connecticut court in the Dresser case. It is therefore necessary to examine the policy in connection with that decree to ascertain the powers of appellant in this respect; and in doing so we must consider tiie various funds involved in the inquiry.

The defendant company seems to have had a checkered career. It was organized under an act of the Connecticut Legislature, in 1866, as the “Hartford Accident Insurance Company.” The next year its name was changed to the “Hartford Life & Accident Insurance Company,” and the next year (1868) it was again changed to the “Hartford Life & Annuity Insurance Company” and authorized to “make contracts, upon any and all conditions appertaining to or connected with life risks, annuities and reversionary interests of whatever kind and nature.” It then became a full-fledged life insurance company. Its business kept pace with these changes, and in 1879 it reduced its capital stock and organized the safety fund department in which these policies were issued, and continued to write that kind of insurance until 1899 when it ceased to issue such policies, but has continued to administer the funds created under their terms. The plan was the same as that expressed in the policy sued on. Each certificate-holder contributed $10 per $1000 of insurance to form the “safety fund,” which was to be held and administered by a corporation formed by themselves, called the “Security Company.” When the fund reached $300,000 its income was to be distributed among the policy-holders according to the amount of insurance held by each, by applying it in reduction of their future assessments. It was to be invested in United States bonds and when it reached the sum of $.1,000,000 “in United States bonds” no further accumulation was to be made, but all future payments by policy-holders of the $10 per $1,000 required for that fund were to be divided among policy-holders of five years ’ standing and applied to reduce assessments the same as the interest. Although the fund reached the magnitude of $1,000,000, it never reached that amount in United States bonds, but was invested in other securities, including railway and bank stocks and irrigation bonds. At the time of the assessment here in question the principal of this fund amounted to $1,166,354.29. How much it had been depleted by losses up to that time does not appear. The income of it is, under the contract contained in the policies, paid into the mortuary funds semiannually, and distributed in reduction of mortality assessments.

There is one more fund which is material in this controversy. It will be seen from the terms of this certificate that upon payment of a death loss “any mortality or other charge against the member payment of which is not matured” is to be deducted. In other words, if he died after the close of the assessment quarter and before payment of the assessment was due, the entire assessment was to be deducted; if before the end of the quarter only, the pro rata amount up to the time of his death was to be deducted from the amount of the indemnity paid. In this way each assessment was excessive to that extent, and the excess, amounting to “many thousands of dollars,” together with the surplus resulting from the overestimate of probable lapses, all of which was applicable to the payment of mortality assessments, had, at the time of the Dresser judgment, been kept in the mortuary fund for the payment of death losses in advance of the assessments, and this constituted the fund for the prompt payment of losses which the Connecticut court had in view when it entered the judgment. It was a fund being continually replenished at the occurrence and payment of each death loss, and the same fund about which it said in its judgment:

“The plaintiffs claim it was improper and wrongful to accumulate these margins and to carry this balance in said mortuary fund, and claimed that said balance of margins should be distributed amongst the outstanding certificate holders, but it held that it is proper and reasonable that the company should hold some such fund for the purpose of enabling it to pay losses promptly, but that it was not necessary for that purpose that the company should hold more than the amount of one average quarterly assessment for the previous year.”

It is plainly seen from an attentive reading of this judgment that the court did not have any idea of undertaking to make a new contract for these certificate-holders or to change the old one. It had no more right to do this than did the Legislature, and asserted no such right, but it found this fund present in the mortuary fund; it was a flexible one because replenished by each death loss, and the court considered it proper that it should be used for any lawful purpose connected with the fund from which it had been taken by a slight and perhaps necessary safety margin in the assessment for each loss; and it was proper, in the estimation of the court, that such part of it as should be reasonable and necessary, not to exceed the amount of the average assessment for the next preceding year, should be used for the prompt payment of losses and that the remainder should be used in reduction of the succeeding assessment.

In the light of these three funds, that is to say (1) the fund proceeding directly from the regular quarterly assessments to pay the losses for which they are made, (2) the interest on the safety fund, and (3) the “margins” referred to in the Dresser judgment, we will examine the assessment for the last quarter of 1909 embodied in call 126. The average amount of the quarterly assessments for the preceding year had been $300,-000, to which amount the defendant was limited by the judgment in maintaining this emergency fund. The assessment was levied by its express terms to pay one hundred and nineteen death losses therein enumerated, amounting, in benefits, to $322,378.48. On December 31, 1909, the last day of the quarter for which it was levied, all these losses except fifteen, amounting to $41,-000, had been paid out of the fund on hand and there remained $74,938.92. On the same day there had been paid into the fund from the income account of the safety fund $19,447.39, making the amount left on hand $94,-386.31. Deducting from this $41,000, the amount of the fifteen unpaid losses, left $53,386.31. In other words, the payment of all .losses for which this was to be made left the last-mentioned amount on hand in the fund, to be “replenished” by the $322,387.48. This left a permanent fund on hand to the amount of $375,764.79, or nearly $76,000 in excess of the amount authorized by the Connecticut court and which represents the amount of excess above that authorized by the contract as modified by the judgment.

When this appeared in its evidence, the defendant attempted to explain by the statement that there were other death losses which had accrued up to and including that day, bringing the total amount unpaid up to $128,000 in round numbers. Were this true, and the proofs in the hands of the company, they should have been included in that assessment, but no claim is made that they belonged there. If the death had occurred before that date and no proof had been furnished the company, the fund would be “replenished” to that amount in the next assessment so that, they would have no influence whatever in determining the amount of call 126, but could be promptly paid out of the surplus that call would leave on hand. It is intimated, however, that the $87,000 of these losses not included in call 126 had been included in previous assessments, the payment upon which had been extended out of kindness to the certificate-holders; and this suggestion is given color by the report of defendant filed in the insurance department of Missouri as of that day, in which the following item appears: “Net premiums in course of collection safety fund department $185,000. ’ ’ And as this included both the men’s and, women’s division of that fund it would probably account for the proportion of such pending collections in the men’s department. For this an assessment had already been made which should be added to the amount of call 126 as a means of replenishing the fund. Its inclusion in this transaction in any other form would be in plain violation of the terms of both the policy and judgment.

It follows that the appellant, instead of sustaining the burden of proving á valid assessment as a foundation for the forfeiture of this policy, has shown a grossly excessive one made without authority either in the contract or the judgment in the Dresser case, and in pursuance of a policy which runs like a sordid thread through the record, of accumulating large funds at the expense of the policy-holders, and withholding them as long as possible from distribution. When we consider that, in addition to what it received out of the income of these funds, it was collecting at the time this assessment was made, and receiving as compensation for the conduct of this remnant of an abandoned business, about $85,000 per year from the policy-holders, we can see no excuse for extortion. We do not think a forfeiture can stand on the foundation of this assessment.

IV. The appellant in argument contends that the policy was properly forfeited for nonpayment of ten cents, a balance which it claims to have been due on the following figures. It charged Mr. Barber one-fourth of his annual dues under the policy for expenses — $1.50. The court in the Dresser decree had ordered that $40,046.36 illegally withheld from the policy-holders on account of excessive fees exacted for the care of the safety fund should be returned to them. On this account $1.40 was credited as the share running to this policy, leaving ten cents due in addition to the assessment for mortuary purposes. The policy, in this respect, runs as follows:

“In consideration of ... $3 per annum on each $1000 of the indemnity herein provided for, expense dues, to be paid as hereinafter conditioned.”

The policy is dated September 4* 1893. On the next page are the “conditions” which, with respect to this payment, are as follows:

“The member agrees to pay to said company, for expenses, dues of $3 per annum on each $1000 indemnity on the first day of the month after date of issue hereof, and at every anniversary thereafter, so long as this certificate shall remain in force; or by pro rata installments of the same, in advance, for periods of less than a year.”

We have searched this voluminous record carefully for any evidence of any.other arrangement. This was by the terms of the policy due on October 1st of each year and we see nothing in the provision we have quoted which gave the appellant the right at its own election,' and without the consent of the policy-holders, to make it otherwise payable. The forfeiture cannot stand on this ten cents.

V. In all the mutations which the appellant has undergone at the hands of the Legislature, there are some things in its original charter which seem to have remained intact. One of them provides: “All a4La-irs of said corporation shall be managed and controlled by a board of not less than seven directors (the number of said directors to be determined by the by-laws of said company)” and the other vests the power to make by-laws in the stockholders. It is not contended by the appellant that this assessment was made by the directors or by any committee appointed by the directors, or in accordance with any rule prescribed by them, or that it ever passed under their observation as a board, or was ever spread upon the corporate records. Nor is it contended that there is any by-law prescribing the method of levying the assessment. The action of the company in making assessments involved the use of the highest discretion. It claimed the right, in the performance of that act, to determine an amount to be kept on hand for the payment of all such losses as might occur immediately upon the receipt of the proof and independently of any assessment therefor. The levying of these assessments and the determination of the amount of this fund which was limited only by circumstances of which it was required to judge, subject only to the maximum prescribed in the Dresser judgment, were the highest and most important acts, and involved the largest discretion of any which related to the class of insurance to which its activities were mainly directed during the twenty years preceding 1899. If the legislative direction that all its affairs were to be managed and controlled by their direction did not include this, it would be difficult to say what it did include. It evidently means more than the appointment of the nsnal officers of snch corporation. Under these circumstances we think the executive officers of the company were without power to determine these things and to levy these assessments otherwise than under their direction to he shown by its records. [Bacon on Benefit Societies and Insurance, section 377; Farmers’ Milling Co. v. Insurance Co., 127 Iowa, 314; Insurance Co. v. Chase, 56 N. H. 341; Garretson v. Equitable M. L. Assn., 93 Iowa, 402.]

We have examined the cases referred to by appellant, and note that the Fee case (Fee v. Accident Assn., 110 Iowa, 271), is necessarily overruled by the Mill Owners case, supra, 127 Iowa, 314; and Miles v. Life Assn., 108 Wis. 421, construed a charter so different from the one we are considering as to make it entirely inapplicable to this case. The same may be said of Insurance Co. v. Birnbaum, 116 Pa. St. 565. There is nothing in either of these cases tending to disapprove the position we have taken.

VT. The submission of the question of damages and attorney’s fees to the jury was proper under the rule stated by this court in Keller v. Home Insurance Co., 198 Mo. 440, and Brown v. Assurance Co., 45 Mo. l. c. 227, where it is said that:

“The whole question of vexatious refusal or delay is a matter of fact to be determined by the jury. They must make up their verdict on this issue by a general survey of all the facts and circumstances in the case; and if, upon full consideration, they conclude that the refusal was .unjustifiable and vexatious, the law authorizes them to assess the damages. The statute will not admit of the construction contended for by the counsel for the plaintiff in error, that before damages are allowed it must be explicitly proved by the plaintiff that the delay or refusal was vexatious.”

We think that under this rule the evidence was ample to justify the submission of that question, and that the instruction of the court properly defined the duty of the jury. There having been no error in this and the appellant having failed to sustain the burden of showing, or presenting evidence tending to show, the levy of a legal assessment in the matter of call 126, for the nonpayment of which it seeks to forfeit the policy sued on, the judgment of the circuit court is affirmed.

Hailey, G., not sitting.

PER CURIAM.

The foregoing opinion of Brown, C., is adopted as the opinion of the court.

All the judges concur.