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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

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."

"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

it to Klobasa.

to some indebtedness between them. Therejustice of the peace on the policy, filing that, upon Lehmann instituted his action before a 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

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:

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.

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,

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 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 bei 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

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 owner of property applied to a firm of insurance agents, representing a number of not desiring to write the insurance in one of companies, for insurance thereon. The firm,its own companies,-in accordance with a custom prevailing among the insurance agents of agent of defendant, who issued the policy and the city, turned the application over to the 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."

[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

court or jury may "allow the damages" to being the effect of evidence, the establishment the plaintiff. of a fact by evidence.

In Jones v. Prudential Ins. Co. of America,

173 Mo. App. 1, 155 S. W. 1106, the action was by an assignee of the policy and a verdict and judgment allowing him damages and attorney's fee for vexatious delay was affirmed by our court.

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While we think that the defense in this case is on a very narrow technicality, seeking to avoid liability on account of what is claimed to be an erroneous classification, designating the building as a "dwelling" instead of as a "mercantile building," and so liable for a higher rate, the evidence is that the error was that of the clerk of one found to be the agent of the insurer, the error, if one, made in the face of a statement by the insured of

the exact use of the building, we think that the defendant has been sufficiently penalized by the verdict and judgment and will not impose any additional penalty.

The judgment of the circuit court is affirmed.

NORTONI and ALLEN, JJ., concur.

[Ed. Note. For other cases, see Intoxicating

Liquors, Cent. Dig. § 37; Dec. Dig. § 30.*]
2. EVIDENCE (§ 12*)-JUDICIAL NOTICE-POP-

ULATION OF TOWN.

In such a proceeding the county court must take judicial notice of the population of a town as determined by the municipal cen

sus.

Cent. Dig. § 17; Dec. Dig. § 12.*]
[Ed. Note.-For other cases, see Evidence,
3. INTOXICATING LIQUORS (§ 30*)-LOCAL OP-
TION ELECTION-MUNICIPAL CENSUS COL-
LATERAL ATTACK.

The result of a municipal census taken by a town under Rev. St. 1909, § 7239, authorizing the legislative body of a town to take a census to determine whether the town has 2,500 inhabitants or more so as to be entitled to vote separately from the remainder of the county to sold, is not subject to collateral attack. determine whether intoxicating liquors shall be

[Ed. Note.-For other cases, see Intoxicating Liquors, Cent. Dig. § 37; Dec. Dig. § 30.*] 4. PROHIBITION (§ 3*)-EXISTENCE AND ADEQUACY OF OTHER REMEDIES-ELECTION CONTEST.

proceeding, disregarded a census regularly takWhere the county court, in a local option en by a town under Rev. St. 1909, § 7239, authorizing the legislative body of a town to take a census to determine whether it has a population of 2,500 or more so as to be entitled to

a local option election separately from the remainder of the county, the town was entitled to a writ of prohibition directed against the county court; the town not having a complete and adequate remedy by way of an election con

test.

[Ed. Note.-For other cases, see Prohibition, Cent. Dig. §§ 4-19; Dec. Dig. § 3.*]

Proceedings by the State, on the relation of the City of Elvins, and others against John Marshall and others, for a writ of prohibition. Writ awarded.

B. H. Boyer, of Farmington, for relators. Benj. H. Marbury, of Farmington, for respondents.

STATE ex rel. CITY OF ELVINS et al. v.
MARSHALL et al. (No. 14376.)
(St. Louis Court of Appeals. Missouri. June
2, 1914. Rehearing Denied June 17, 1914.)
1. INTOXICATING LIQUORS (§ 30*)-LOCAL OP-
TION-DISTRICT OR TERRITORY IN WHICH
ELECTION MAY BE ORDERED "PROOF."

On April 20, 1914, a petition was filed with the county court, under the provisions of the statute relating thereto, alleging that the city of Farmington was, at such time, the only incorporated city in such county having

Under Rev. St. 1909, §§ 7238, 7239, providing that any incorporated city or town having a population of 2,500 or more is entitled to vote separately from the remainder of the county to determine whether intoxicating liquors shall be sold within its limits, and for the purpose of determining whether any town has 2,500 inhabitants, such body having legislative functions therein may, under an ordinance thereof, take a census, and the result thereof shall be entered on the records or minutes thereof, and such entry, or a certified copy thereof, shall be proof of such fact, and shall be filed with the clerk of the county court, etc., where a population of 2,500 inhabitants or more, a city, pursuant to such statute, has caused and praying the county court to order and a census to be taken by virtue of an ordinance, call a "local option" election to be held in and adopted the same, the result thereof enter- and for all of said county outside of the city ed upon its records and filed with the clerk of of Farmington, and including the city of Elthe county court is binding upon the county court in a proceeding for a local option election, vins. precluding it from going behind the result as entered, since the entry of the result on the records of the city's legislative body "shall be proof of such fact," not merely evidence of the fact of the population of the town; "proof" ants or more is entitled to vote separate and

ALLEN, J. This is an original proceeding in this court, wherein relators seek a writ of prohibition against the judges of the county court of St. Francois county. The relators are the city of Elvins, a city of the fourth class situated within said county, the mayor thereof, and certain taxpaying citizens and residents of such city.

Under the provisions of sections 7238 and 7239, Rev. Stat. 1909, any incorporated city or town having a population of 2,500 inhabit

apart from the remainder of the county in as aforesaid, and to proceed accordingly in which it is situated to determine whether or ordering the election, we have little doubt. not spirituous and intoxicating liquors shall Respondents contend that such census was be sold within its limits. These sections were fraudulently taken for the purpose of presought to be repealed by the last Legislature, venting the city of Elvins from being includby what is known as the "County Unit Bill." ed within the remainder of the county (outLaws of Missouri 1913, p. 388 et seq. How- side of Farmington) in the holding of the loever, the operation of said last-mentioned cal option election; that it is a mere pretendact was suspended by the filing of referendum ed census or enumeration of the inhabitants petitions, and said law is now so held in sus- of such city, and was fraudulently "padded" pension pending a vote thereon by the voters with the names of persons not inhabitants of the state at large, whereby the provisions thereof. Likewise the regularity of the proof the statute of 1909, above referred to, still ceeding had by the board of aldermen of the remain in force and effect. See State ex city of Elvins in respect thereto is assailed. rel. Kemper v. Carter et al., 165 S. W. 773. But it appears that the census was taken unThe proviso to section 7239, supra, is as der and by virtue of an ordinance of the city follows: of Elvins, and, when taken, was duly report"Provided, that for the purpose of determin- ed to the board of aldermen, and by the lating the fact of whether or not any town shall ter accepted and adopted as and for a proper be governed by the provisions of this section, such body having legislative functions therein census of said city, and that the result theremay, under an ordinance thereof, take a census of was entered upon their records, and the of the inhabitants of such town, and the result same duly certified to the clerk of the counof such census shall be entered upon the jour-ty court, in accordance with the provisions of nals or records thereof, and such entry, or a certified copy thereof, shall be proof of such fact, and shall be filed with the clerk of the county court of the county in which such town is situated."

It appears that during the year 1913 an ordinance was enacted by the board of aldermen of the city of Elvins, providing for the taking of a census of the inhabitants thereof, which census was taken by an enumerator, one C. R. Huddleston, appointed there for, pursuant to the provisions of said ordinance, and the same together with the sworn "return" of such enumerator, setting forth the result of said census, was filed with the clerk of said city. The result of the census thus taken showed the city of Elvins to have a population of 2,521 inhabitants. And thereafter, on September 4, 1913, as appears by the record of the meeting of the board of al- In the case before us the entry in the jourdermen of that day, the "census report filed nal of the board of aldermen showing the reby C. R. Huddleston showing 2,521 was offi-sult of such census is quite informal, recitcially accepted by board," and the certified ing merely that the "census report filed by copy of said "return" of such census enumer- C. R. Huddleston showing 2,521 was officially ator, theretofore filed with the city clerk, accepted by board." However, this appears was filed with the clerk of the county court. to be a substantial compliance with the statute in this regard; the evident purpose of this requirement of the statute being to afford proof that the legislative body of the city had acted upon and adopted the enumeration taken pursuant to the ordinance as and for an official census of the city.

It appears that, at the time of the application to this court for a writ of prohibition, the county court had assumed jurisdiction over the subject-matter of the local option petition before it, and was proceeding therewith in disregard of the census taken by the city of Elvins as above mentioned, having inquired into certain charges of illegality and fraud in the taking thereof, and having found that such census "was false, fraudulent, and void, and not based upon any proper and legal list, count, or enumeration of the inhabitants of the city of Elvins."

The question, therefore, before us is whether or not the county court, in so proceeding, was exceeding its jurisdiction in the premises.

section 7239, supra.

The county court had before it the record of the proceedings of the board of aldermen relative to the census in question. It cannot be doubted that the ordinance authorizing and providing for the taking thereof is valid upon its face, and within the authority conferred by section 7239, supra. The statute is general in its terms, and quite indefinite as to the character of the census to be taken or the method to be pursued in the taking thereof. See Flowers v. Smith, 214 Mo. loc. cit. 140, 112 S. W. 499. It merely provides that the body having legislative functions in such city may, under an ordinance, take a census, and requires that the "result" thereof be entered upon its records and filed with the clerk of the county court.

[1] As to the duty of respondents to accept the census of the city of Elvins, taken and

The statute provides that such census may be taken "for the purpose of determining the fact of whether or not any town shall be governed by the provisions of this section," and that the entry of the result of such census in the records of the city's legislative body shall be proof of such fact.

Proof is defined to be "the effect of evidence; the establishment of a fact by evidence." See Black's Law Dictionary (2d Ed.) "Proof." The statute does not declare that such entry shall be evidence merely of the fact of the population of a city or town, to

by the provisions of the section, nor prima facie proof thereof, to be overthrown by the effect of other evidence adduced. And although it is not specifically declared that such shall be conclusive proof thereof, a reasonable interpretation of the statute would seem to be that the Legislature intended to make such entry, or a certified copy thereof, binding upon the county court in a proceeding of this character, precluding it from going back of the same, where the city, pursuant to the statute, has caused a census to be taken by virtue of an ordinance, and adopted the same and the result thereof has been entered upon the records of its legislative body.

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suses.

[2] Our courts have constantly taken judicial notice of the population of cities of the state, as determined by such municipal cenSee State ex rel. v. Dolan, 93 Mo. loc. cit. 471, 6 S. W. 366; State ex rel. v. Wofford, 121 Mo. loc. cit. 71, 25 S. W. 851. And if the appellate courts and courts of general jurisdiction throughout the state are required to take judicial notice of such a census, surely a county court must do likewise. And such was held to be the case, in a proceeding of this character, in State ex rel. v. Cass County Court, 137 Mo. App. 698, 119 S. W. 1010.

[3] And to the charges of fraud in and about the taking of the census, it may be said that the proceedings respecting the taking thereof, and the adoption of the same as and for an official census of the city, and which upon the face thereof appear to be regular, and in substantial compliance with the statute, were had in and before a duly constituted tribunal, to wit: The board of aldermen of the city of Elvins, directly empowered by law to act in the premises. From which it appears that the result is not subject to the collateral attack which respondents now seek to make upon it.

In State ex rel. v. Cass County Court, supra, 137 Mo. App. loc. cit. 708, 119 S. W. 1013, the Kansas City Court of Appeals, through Ellison, J., as to this very matter, said:

"Indeed it is fundamental rule of law that the acts of a body intrusted by law with the performance of certain specified proceedings which, on their face, are regularly taken are not subject to attack, except in a direct proceeding for that purpose. This rule applies as rigidly to special and inferior bodies as it does to superior courts. In most instances presumptions upholding proceedings in superior courts will not aid omissions in proceedings of those of inferior grade. But where the record of the latter, on its face, is regular, it is not subject to

of power and dignity of the body does not enter into the question. State ex rel. v. Wilson [216 Mo. 149 [20 S. W. 459]; Jeffries v. Wright, Mo. 215] 115 S. W. 549; Lingo v. Burford, 112 51 Mo. 215; State v. Evans, 83 Mo. 319; Union Depot Co. v. Frederick, 117 Mo. 148 [21 S. W. 1118, 1130, 26 S. W. 350]; Light & Water Co. v. Lebanon, 163 Mo. 250 [63 S. W. 8091; 1 Black on Judgments, § 273; Freeman on Judgments, § 523; Van Vleet on Collateral Attack, $$ 62, 468. Therefore respondent's allegation of fraud in the census was the assertion of mat

ter which could not be made an issue in the present case."

In State ex rel. v. Mitchell, 115 S. W. 1098, the same doctrine is announced by this court as in the Cass County Case, supra, so far as concerns the right to collaterally attack the city's census. While both of these cases are in effect overruled as to another question involved by the decision of the Supreme Court in State v. Jaeger, 240 Mo. 1, 144 S. W. 103, the latter in no wise weakens their authority as to the matter here under consideration. in the Jaeger Case, contrary to the rulings in the Cass County and Mitchell Cases, supra, it was held that a census taken and filed after the day upon which the county court ordered the holding of the election did not in any manner affect the status fixed by the order. This was because of the wording of the statute under consideration, as will appear by reference to the opinion originally written by Hon. Edgar P. Mann, acting as special judge of the Springfield Court of Appeals, and adopted by the Supreme Court. The question now under discussion was not there involved; but it is significant that in the course of the opinion the census of a city, in cases of this character, is twice referred to as the legal standard of determination, whereby the population of such city is to be determined by the county court.

We are referred by respondents to the opinion of the Springfield Court of Appeals in State ex rel. v. Wooten, 139 Mo. App. 221, 122 S. W. 1103. That was a proceeding by mandamus to compel the issuance of a dramshop license to the relator, and constituted an indirect attempt to contest the validity of a local option election theretofore held under an order of the county court. And if what was there said, on motion for rehearing, is to be taken to mean that a county court has jurisdiction to inquire into a city census, where the proceedings had by the city's legislative body are regular upon their face, and in substantial compliance with the statute, such appears to be in contravention of the statutory provisions above referred to, and in conflict with State ex rel. v. Wofford and State ex rel. v. Dolan, supra, as well as with what is said in State ex rel. v. Jaeger, supra.

In Flowers v. Smith, 214 Mo. loc. cit. 141, 112 S. W. 499, to which we are referred by respondents, it is said that:

"If the affidavit of the enumerators is the only thing on file in the office of the city clerk, and no action was taken by the council accepting

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