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remembered this was the man I had seen under On the foregoing record it is apparent these circumstances at his home on Missouri three questions arise: He says, 'Don't you remember having called on me on Missouri avenue?' I became a little angry then, and told him I did remember it, and I likewise remembered he had lied to me.'

Such are substantially the facts. The instructions and statute in judgment are, to wit:

Section 1912, R. S. 1909, held in judgment, reads:

"Every judgment, order or decree of any court of record of the United States, or of this or any other state, territory or country, shall be presumed to be paid and satisfied after the expiration of ten years from the date of the original rendition thereof, or if the same has been revived upon personal service duly had upon the defendant or defendants therein, then after ten years from and after such revival, or in case a payment has been made on such judgment, or der or decree, and duly entered upon the record thereof, after the expiration of ten years from the last payment so made, and after the expiration of ten years from the date of the original rendition or revival upon personal service, or from the date of the last payment, such judgment shall be conclusively presumed to be paid, and no execution, order or process shall issue thereon, nor shall any suit be brought, had or maintained thereon for any purpose whatever."

Defendant asked and received (plaintiff objecting and excepting) an instruction applicable to each count, to the effect that the court declares the law to be that under the pleadings and evidence the judgment should

be for the defendant.

On his part plaintiff asked instructions, all refused, to wit (No. 1), to the effect that section 1912, supra, is inoperative and void in that it is violative of section 1, art. 6, of the Constitution of Missouri, in seeking to deprive the courts of a judicial power vested in them; and another (No. 2), to the effect that said section 1912 is unconstitutional in that it denies to plaintiff "certain remedy for defendant's injury to plaintiff's property, and denies right and justice to the plaintiff," contrary to section 30, art. 2, of the Constitution; and another (No. 3), to the effect that section 1912, supra, is violative of section 10, art. 2, of the Constitution, in that it deprives plaintiff of his property without due process of law; and another (No. 4), that section 1912, supra, is violative of article 3 of the Constitution as an attempt on the part of the Legislature to exercise the powers of the government vested in the judicial department; and, finally, another one reading:

"(5) The court declares the law to be that if defendant, Samuel Carp, prevented the process of service upon himself in an action pending in the circuit court of the city of St. Louis, Mo., from March 13, 1907, to April 4, 1907, brought by the plaintiff against the defendant on the same cause of action herein sued on, and that if this was done by the defendant misrepresenting his identity to the plaintiff on or about the 11th day of March, 1907, then such act was a wrongful and improper act on the part of the defendant, and the period of the pendency of such action shall not be counted in determining whether or not the plaintiff is precluded from recovery in this case by operation of the provisions of section 1912 of the

First. Conceding (for the purposes of argument only) that section 1912, R. S. 1909, supra, relating to a conclusive presumption of payment of a judgment in 10 years, is so far forth a statute of limitations that it may be tolled on proof of nonresidence, or by proof that the judgment defendant concealed himself or absconded, then the mandatory instruction given for defendant challenges the sufficiency of the proof, and the first question relates to such sufficiency.

Second. The next question is: Is section 1912, strictly speaking, such a statute of limitations as may be tolled at all? That is, is it subject to the ordinary incidents of statutes of limitations relating to the commencement of suits, to wit, nonresidence, concealment, of fraud, etc., by improper acts?

Third. The last question is: If it cannot be tolled, and if it is not subject to the usual incidents of the ordinary statute of limitations in other respects, then is it constitutional? Let us attend to them seriatim.

Of the Sufficiency of the Proof.

[1] (a) In this case (admitting for the purment may be tolled) plaintiff's proof was inposes of the point that the statute in judg sufficient. The petition assumes defendant's residence in this state until in May, 1907. Now, under plaintiff's proof, defendant's residence, his usual place of abode, was in this state until in March, 1908; that is, for more than 10 years after the date of the original judgments. True it is that for a few months prior to March, 1908, defendant was temporarily (for the purpose of testing out the establishment of a business) in Greenville, Ill. True, too, he intended to establish

a residence there if his venture succeeded.

But his experiments in that way were ordinary ones in business matters-not an absconding or concealment. His absence was casual and temporary. He still had "his usual place of abode" in St. Louis. His family continued to reside in that city. He had not abandoned them and taken up his residence separate from them in Illinois. Legal service of a summons on him in St. Louis could have been made by serving it on some member of his family over 15 years of age at his usual place of abode on Carr avenue. R. S. 1909, § 1760.

[2, 3] Nor does the evidence show an absconding or concealment or any improper act of a certain brand or character, to wit, one preventing "the commencement of an action" within the purview of section 1905, R. S. 1909. That section reads:

"If any person, by absconding or concealing himself, or by any other improper act, prevent the commencement of an action, such action may be commenced within the time herein limited, after the commencement of such action shall have ceased to be so prevented."

[4] Obviously defendant, as said, did not

Obviously, too, the absconding or concealing, | in St. Louis on a given day in the same Sepwithin the intendment of the statute, must tember. It also tends to show the personal be of such character as to prevent the com- presence of the detective in Greenville for mencement of the action. So, the "improp- several days and, observe, also "at work❞— er act" referred to in the statute must be in the picture line. But it does not tend to one in the nature of a fraud that would pre- show said detective had his usual abode in vent the commencement of the action, in or- Greenville any more than that defendant had der to bring the act within the statute. This his there. defendant did no act of that kind, nor did plaintiff tell defendant he desired to commence an action. At most and worst he concealed his name from plaintiff, but that did not prevent the commencement of the action -far from it. Witness the fact that the action was commenced promptly within two days. Moreover, whatever moral wrong defendant was guilty of in his talk with plaintiff is not shown to have any causal connection whatever with the failure of the sheriff to find him, or to find his family and make service on a member of it at his usual place of abode two days later, or at any time. The sheriff never heard of that conversation. Nor does it appear that the conversation had any causal connection with the dismissal of the action presently.

In Amy v. Watertown, 130 U. S. 320, 9 Sup. Ct. 537, 32 L. Ed. 953, the Supreme Court, speaking by Mr. Justice Bradley to a situation more sharply emphasized than here (for in the Amy Case there was inability to serve process upon a defendant "caused by his designed elusion of it") held it was no excuse for not commencing an action within the prescribed period. In that case the learned justice draws a broad distinguishing line between cases where there is a concealment or fraud that prevents a party from knowing he has been injured and has cause of action and those cases where a party knows he has a cause of action, but from his own fault does not avail himself of the means which the law provides for prosecuting his claim "or instituting such proceedings as the law regards sufficient to preserve it." In his discussion he makes observations pertinent to the instant case, to wit:

"The answer made by the plaintiffs to the plea of the statute amounts to nothing more than an allegation that the defendant, the city of Watertown, by the acts of its officers, seeks to evade the service of process. Their language is that the officers and people have conspired together for the purpose of defrauding the plaintiffs, and to prevent them from obtaining service of process. Is it fraud in a debtor to endeavor to evade the service of process? Is it any more fraudulent than it is not to pay the debt? Fraud is not the proper term to apply to such conduct. It may be morally wrong. It may be dishonest; but it is not fraudulent in the legal sense of the term."

The premises in mind, we are of opinion defendant's mandatory instructions were well enough from the viewpoint of the insufficiency of the proof to take the case outside of the statute, even if that statute can be tolled in any way except in the ways mentioned in the section itself. It follows, also, that instruction No. 5 for plaintiff was properly refused as not supported by the proof.

(b) If we had come to a different conclusion on the question discussed in the foregoing paragraph, then the other two questions raised would bespeak attention, but as the case has broken on the sufficiency of the proof, it would be in a sense obiter to pass on the question whether section 1912, supra, may be tolled by proof of nonresidence, or such concealment or absconding or other improper act (amounting to a fraud) as prevents the commencement of an action. The same is true of the third question, to wit, the contention of appellant that section 1912, supra, is unconstitutional. We dismiss the matter with these observations: In material features the section assailed is a very old one, originating in 1835. R. S. 1835, p. 396, art. 4, § 1. It was brought forward as live law in all material parts in the revisions of 1845, p. 721, c. 109, art. 4, § 1; 1855, p. 1053, c. 103, art. 3, § 16; 1865, p. 749, c. 191, § 31; 1879, § 3251; and 1889, § 6796. In 1895 (Laws 1895, p. 221) the existing statute was repealed and a new one enacted. During all this time, barring certain provisions we may call exceptions, written into the section itself, there was a conclusive presumption of payment after the lapse of 20 years, agreeing in that respect quite closely with the common law. Gaines v. Miller, 111 U. S. loc. cit. 399 et seq., 4 Sup. Ct. 426, 28 L. Ed. 466. In 1895, as said, the statute existing up to that time, substantially in the same form, was repealed and a new one enacted, cutting down the time to 10 years and prescribing a presumption of payment on the lapse of that time, saying nothing about a "conclusive presumption." However, four years later in 1899 (Laws 1899, pp. 300, 301) the act of 1895 was itself repealed and a new section enacted in lieu of it, preserving the limitation at 10 years, and reincorporating into itself the conclusive presumption of payment, barring certain exceptions enumerated in the act of which nonresidence, absconding, or concealment is not a part; and this act of 1899 is carried forward into our present revision as section 1912, supra.

The testimony of the Pinkerton detective we lay out of view on the question of residence, or usual place of abode. It is instructive and amusing on the subject of furtive kodak photography. It certainly tends to prove the personal presence of defendant in Greenville in a store at work for one day in The former statutes have been frequently September, 1907, and one in the following before appellate courts, and in no case was

from the angle appellant's learned counsel | the insured's interest under the policy after the challenge it, and in no case coming to our at- loss; the right to recover not being confined by the statute to the insured. tention was it held that nonresidence, fraud, concealment, etc., tolled that particular statute. Hence questions thus presented are both novel and grave. To find a new point of attack on so venerable a statute chal

[Ed. Note.-For other cases, see Insurance,
Cent. Dig. § 1498; Dec. Dig. § 602.*]
6. Costs (§ 260*)-DAMAGES FOR VEXATIOUS
APPEAL.

lenges admiration for the courage and versa-
tility of counsel, but as the case has already
ridden off on the sufficiency of the proof,
even on appellant's own theory of those
tions, we deem it wiser to reserve them until
a case is reached turning on one or the other
in some vital aspect, so that what we then
say may be necessary exposition, and not un-
necessary exposition.

The judgment should be affirmed.
It is so ordered. All concur.

The penalty of 10 per cent. for a vexatious appeal will not be assessed against an inbility on the narrow technicality that the buildsurance company, though seeking to avoid liaing where the property was located was desigques-nated as a dwelling, instead of a mercantile building, where the mistake was made by its agent's clerk, and it had been sufficiently penalized by the judgment below for damages and attorney's fees.

[Ed. Note.-For other cases, see Costs, Cent. Dig. §§ 983-996, 1002, 1003; Dec. Dig. § 260.*]

Action by John S. Lehmann against the Hartford Fire Insurance Company on an in

LEHMANN v. HARTFORD FIRE INS. CO. Surance policy, the insured's interest under (No. 13669.) which had been assigned to plaintiff. Judgment for plaintiff, and defendant appeals. (St. Louis Court of Appeals. Missouri. June Affirmed. 2, 1914.)

1. EVIDENCE (§ 213*)—ADMISSIONS-OFFER OF COMPROMISE.

Statements of the insurer's adjuster that they could give the insured only 50 cents the dollar were not inadmissible as an effort to compromise, where they were made not in an effort to compromise, but in an interview looking to the adjustment of the loss, preparatory to making the necessary proofs, and prior to the bringing of suit.

[Ed. Note. For other cases, see Evidence, Cent. Dig. 88 745-751, 753; Dec. Dig. § 213.*1 2. INSURANCE (§ 379*)-AVOIDANCE OF POLICY FOR MISREPRESENTATIONS- - USE OF BUILDING.

An insurer was not released, because a paster attached to the policy when the property was moved stated that it was located in a building used as a dwelling, whereas it was a mercantile building, where the insured stated the true facts to the agent from whom he procured the policy, when the paster was attached, provided such agent was the agent of the insurer. [Ed. Note. For other cases, see Insurance, Cent. Dig. §§ 999-1015; Dec. Dig. § 379.*] 3. INSURANCE (8 76*)-ACTIONS ON POLICIES -SUFFICIENCY OF EVIDENCE.

Evidence in an action on a fire insurance policy held to warrant a finding that a broker, through whom the insurance was procured, was the agent of the insurer, rather than the in

sured.

[Ed. Note.-For other cases, see Insurance, Cent. Dig. § 101; Dec. Dig. § 76.*]

Appeal from St. Louis Circuit Court; Wm. M. Kinsey, Judge.

[Ed. Note. For other cases, see Insurance, Cent. Dig. § 1498; Dec. Dig. § 602.*]

Barclay, Fauntleroy, Cullen & Hay, of St. Louis, for appellant. Lehmann & Lehmann, of St. Louis, for respondent.

REYNOLDS, P. J. One White, desiring to procure insurance on certain household goods, situated in his residence in the city of St. Louis, asked one Ver Steeg, a real estate agent, to procure the insurance for him. Ver Steeg went to one Klobasa, an insurance agent or broker, and applied for the insurance. It appears that Klobasa, for some reason and following a custom prevailing between insurance agents and brokers in St. Louis, went to one Schulte, who was also engaged in the insurance business and asked him to write the policy in one of the companies for which Schulte was agent. Schulte gave Klobasa a policy in the Hartford Fire Insurance Company, insuring household and kitchen furniture belonging to White and his family, the policy to cover the property "while contained in a frame building occupied as a dwelling" by White and situated at 5936 Elmbank avenue in the city of St. Louis, the amount being $350. Klobasa delivered this policy to Ver Steeg, who delivered it to White, White paying the premium. The policy was for the term of three years from the 15th of April, 1910. Intending to remove to Rich

4. INSURANCE (§ 602*)-ACTIONS ON POLICIES -SUFFICIENCY OF EVIDENCE.

Evidence in an action on an insurance pol-mond Heights, in St. Louis county, White icy held to warrant a finding of vexatious delay in payment of the loss, for which damages of 10 per cent. of the loss and an attorney's fee of $100 was assessed under Rev. St. 1909, § 7068, authorizing the same.

went to Ver Steeg and asked to have the policy transferred so as to cover his household effects in the new location. Ver Steeg referred him to Klobasa, whose name ap

peared upon the back of the policy as the

5. INSURANCE (§ 602*)-ASSIGNMENT OF POL-agent or broker, the policy, however, counterICY-DAMAGES FOR VEXATIOUS DELAY.

for the insigned by Schulte as agent surance company. Going to the office of Klobasa, White told the young man in charge of the office of his intention to remove from the city into the county and told him that he

A claim for damages for vexatious delay of the insurer in paying a loss, under Rev. St. 1909, § 7068, providing that in an action on a policy the court may in such case allow the plaintiff damages, could be assigned along with

White made out the check in each instance to the order of Klobasa and Klobasa settled for it with Schulte. Sometime after the issue of the policy, about March 14, 1911, the property covered by the policy was totally destroyed by fire. White notified Klobasa of the loss and Klobasa sent him to the office of the New York Underwriters, telling him they were the people to adjust it. White went there and was told that the manager of that office was not in; that he was in New York, and that it would be several days before he would return, but they told him to make up a list of the goods he had, which he did, putting a value on them, and presented that to the manager of the New York Underwriters in St. Louis. This manager, after the list had been made out, told White to come back in three or four days. When White went back the manager said:

"Well, I am sorry, Mr. White; you have do is to give you fifty cents on the dollar for had awful bad luck out there, but all we can

this business."

wanted the policy transferred out to 31 Sunset avenue, Richmond Heights, in St. Louis county; that he had moved to that place. The young man asked him what kind of a place it was and White told him it was a two-story house and that there was a store room on one floor and that he and his family lived upstairs, occupying one room on the ground floor as a kitchen. The young man told White that it would cost him a little more money, to which White replied, "All right, I will have to have the policy." That was all that was said between them, according to White, and White left the policy with this young man in Klobasa's office to have the transfer indorsed on it. The foregoing is the testimony of White and it was not contradicted. When the policy came back to White, which it apparently did through Klobasa's office, it had what is called a "paster" upon it, which acknowledged the receipt of $1.40 additional premium on the policy of the Hartford Insurance Company, "being an increase of rate hereon of 50 cents (rate as increased being $1.50), the assured hereunder having moved into the frame dwelling house, situated No. 31 Sunset avenue, Richmond Heights, St. Louis county, Missouri." This was signed, "F. J. Schulte, Agent." It appears that it was filled out in Klobasa's office by him or his employés and sent to Schulte, who signed it as above and returned

it to Klobasa.

It appears from the testimony in the case, as before noted, that Schulte was the agent of the Hartford Fire Insurance Company, and that Klobasa was an insurance agent and broker and also the manager of some other insurance company, and agent for other companies, and that he and Klobasa were in the habit of exchanging business under some arrangement by which they divided commissions. Under this, if one of them received an application for insurance which for any reason he did not care to write in his own company, he turned it over to the agent of some other company with whom he had friendly relations and that agent would countersign and issue a policy from his own company, turning it over, however, for delivery to the agent from whom the business had come to him. It was under this arrangement that Schulte wrote the policy in the Hartford Fire Insurance Company, turn-sification adopted by the insurance companies, ed it over to Klobasa, and Klobasa delivered the building should have been classified as a it to White. On the outside fold of the poli- mercantile building, the rate upon which was cy, in large type appears the name of Kloba- $3.80 per $100 for a term of three years, sa, as "manager," giving his office address. whereas as a dwelling the rate was $1.50, the Testifying as a witness for defendant, Mr. rate charged and collected here. Schulte was asked by the court this: "Now as a matter of fact was Klobasa acting as agent for your company?" He answered, "Yes, sir." By the Court:

There was no dispute that the building specified in the policy was occupied in part as a grocery and that, according to the clas

Learned counsel for appellant make twelve points or assignments of error. In the view we take of the case it is not necessary to consider all of these in detail. The decision of the case lies within a narrow compass.

[1] It is insisted that the statement of the manager of the New York Underwriters,

"Did he act for your company as agent in soliciting insurance? A. Well, not directly; no, sir. Q. The fact of the matter seems to be that he represented one company about as

his interest under the policy and all claim he White, refusing to accept this, assigned might have to damages for a vexatious refusal and to attorney's fee to one John S. Lehmann, the assignment made as collateral to some indebtedness between them. Thereupon Lehmann instituted his action before a justice of the peace on the policy, filing that, to recover against the Hartford Fire Insurance Company. That company not appearing judgment went in favor of Lehmann, from which the company appealed to the circuit court, where on a trial anew before the court and a jury a verdict was returned in favor of Lehmann for the face of the policy, $350, with 10 per cent. damages for vexatious delay, and $100 attorney's fee. From this, interposing a motion for new trial as well as one in arrest, defendant perfected its appeal to this court. The defense was that the use of the building was misdescribed; that it was not to be classed as a "dwelling," but as a "mercantile building" by reason of the use of part of it as a store, and that as a higher rate should have been charged and White had misrepresented the use of the building, plaintiff could not recover.

States Circuit Court of Appeals for the Sixth
Circuit, the opinion delivered by Circuit
Judge Day, now Mr Justice Day.

In that case, quoting from the syllabus, which is a brief and correct report of the opinion on the point in decision, the facts are thus stated:

the insured, to the effect, "You have had aw-| 697, 49 C. C. A. 555, a decision by the United ful bad luck out there, but all we can do is to give you fifty cents on the dollar for this business," was improperly received in evidence, it being claimed that this was said in an effort to compromise and in negotiations for a compromise. Counsel cites us, in support of this claim, to Cullen v. Insurance Co. of North America, 126 Mo. App. 412, 104 S. W. 117. The decision in that case not only does not support the contention of counsel for appellant but is directly against them. There, as here, like evidence was held to be admissible, the statement having been made, not in an effort to compromise, but in an interview between the parties looking to the adjustment of the loss and preparatory to making the necessary proofs, and prior to the institution of any action on the part of the representatives of the insurance company of any liability. It is true that in the Cullen Case it is held that conversations held afterwards, and after suit brought were not admissible, because clearly had in an effort to compromise an action then pending. See also Mason v. Agricultural Ins. Co., 150 Mo. App. 17, 129 S. W. 472.

Under such facts, which are substantially the facts here, it is held that the firm was not the agent of the insured in the transaction, but the agent of the defendant insurance company, which must be presumed to have had knowledge of the custom, and, by [2] It is urged that the change in the loca- receiving the premium and assuming the tion and from a dwelling to a store, it being risk, ratified the agency of the firm through stated in the paster upon which the transfer whom the application was received in acwas allowed that the new location was also cordance with such custom. Rosencrans v. a dwelling and to be occupied as a dwelling, North American Ins. Co., 66 Mo. App. 352, is was a statement amounting to a warranty, in line with this. See, also, Boward v. Bankbecame a part of the contract, was a misrep-ers Union, 94 Mo. App. 442, loc. cit. 450, 68 resentation as to a material matter, and S. W. 369. We are referred to no decisions that the insured cannot recover for a loss. of our own state which hold to the contrary. Without denying the proposition that it re- There was abundant evidence in the case on lated to a material matter, we hold that the which the jury were warranted in finding point made is inapplicable here. The testi- that Klobasa was the agent of the insurance mony is that the insured made no misrepre- company, not of the insured, and that the sentation to Klobasa, but on the contrary no- insurer, through its agent, Klobasa, knew the tified Klobasa, or Klobasa's clerk, that the facts. Manning v. Connecticut Fire Ins. Co., building to which he intended to transfer the 159 S. W. 750. policy was occupied in part by a grocery and in part as a residence. If there was any wrong classification of the risk, it occurred in the office of Klobasa and was made by him in the face of a statement of the truth by the insured. The insured made no concealment or false statements to Klobasa, and if Klobasa was the agent of the insurer and not of the insured, the insured is not responsible for the act of Klobasa in misstating the facts to his company, or the company for whom he was acting.

[3] That brings us to consideration of the main question in the case, namely, as to the capacity in which Klobasa was acting; whether he was acting as agent for the insured or for the insurance company. That question was fully and fairly submitted to the jury and it found against the contention of appellant. It is urged that Klobasa was a mere broker and the agent of the insured. We think that the facts of this case bring it very closely within those present in Queen

"The owner of property applied to a firm of insurance agents, representing a number of companies, for insurance thereon. The firm,not desiring to write the insurance in one of its own companies,-in accordance with a custom prevailing among the insurance agents of the city, turned the application over to the agent of defendant, who issued the policy and delivered it to the firm, which pasted its business card thereon and delivered it to the insured, collecting the premium, which was paid between the two agencies, as was the custom. to defendant; the commissions being divided The transaction was in good faith, and the insured knew no other agent therein than the firm."

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[4] It is argued that this is not a case for the infliction of the penalty for vexatious delay. That question and the allowance of an attorney's fee in consequence of that, as provided by section 7068, Revised Statutes 1909, was properly submitted in the instructions and the finding of the jury is warranted by the facts in the case.

[5] It is further argued that there can be no assignment of the claim for damages for vexatious delay and attorney's fee. The section of the statute referred to is thus-in part:

"In any 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," etc.

It will be observed that this right of recovery in case of loss, is not confined to the insured, but is given, "in any action against

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