nected with life risks of whatever kind or STATE ex rel. MAJOR, Atty. Gen., v. GER- nature, and to receive and execute trusts, to MAN MUT. LIFE INS. CO. et al. (Supreme Court of Missouri. Nov. 29, 1909.) 1. CORPORATIONS (§ 36*) — ACT CREATING "PERPETUAL SUCCESSION." The general rule is that where a special act creating a corporation uses the term "perpetual succession" in connection with the charter, it implies nothing more than a continuance of succession during the existence of the company, which, in the absence of some special provision to the contrary, is for a period of 20 years as provided for by the general corporation law (Rev. St. 1855, c. 34, art. 1, § 1, now Rev. St. 1899, § 971 [Ann. St. 1906, p. 862]). [Ed. Note. For other cases, see Corporations, Dec. Dig. $ 36.* For other definitions, see Words and Phrases, vol. 6, p. 5319.] 2. INSURANCE (§ 32*)-CORPORATIONS-EXIST ENCE. Rev. St. 1855, c. 34, art. 1, § 1, now Rev. St. 1899, § 971 (Ann. St. 1906, p. 862), providing that every corporation has power to have succession by its corporate name for the period limited in its charter, and when no period is limited, for 20 years, is not applicable to a life insurance company created by a special act providing that the company shall have perpetual succession, and hence the charter is not limited to a period of 20 years from the date of the company's incorporation. [Ed. Note. For other cases, see Insurance, Dec. Dig. $ 32.*] Quo warranto by the State, on the relation of Elliott W. Major, Attorney General, against the German Mutual Life Insurance Company and others. Judgment for re spondents. This is an original proceeding in the nature of quo warranto, instituted in this court by the Attorney General, at his own relation, against the German Mutual Life Insurance Company of St. Louis and its board of trustees, by which they are charged with the usurpation of the rights, privileges, and franchises of a corporation, and are asked to show by what authority they exercise the same. Respondents filed their return, justifying their conduct in the premises on the ground that the act of their incorporation, approved November 23, 1857, and amended February 5, 1864, granted unto them a perpetual franchise. These acts are found in Session Acts of 1857 (adjourned session) p. 459, and 1863-64 (adjourned session) p. 357. The reply of the Attorney General is virtually a demurrer to the return. The material parts of said acts of incorporation read as follows: * * * Section 1. "A life insurance company is hereby incorporated to be called the German Mutual Life Insurance Company of St. Louis." * * * make endowments on and to grant and pro- Section 8. "The corporation power of said company shall be vested in sixteen trustees," etc. Section 20. "At the end of every period of five years each member shall be credited with his equitable proportion of the profits of the company." By section 2 of the act of the Legislature, approved February 5, 1864, amending the charter, it is provided that every policy holder shall be a member of the company "as long as such policy remains in force." Said act also provided that sections 7 and 13 of the General Corporation Law then in force should not apply to this company, which sections read as follows: Section 7. "The charter of every corporation that shall hereafter be granted by the Legislature, shall be subject to alteration, suspension and repeal, in the discretion of the Legislature." Section 13. "In all corporations hereafter created by the Legislature, unless otherwise specified in their charter, in case of deficiency, of corporate property or estate, liable to execution, the individual property, rights and credits of every member of the copartnership, or body politic, having a share or shares therein, shall be liable to be taken on execution, to an additional amount, equal to that of the amount of his stock, and no more, for all debts of the corporation contracted during his ownership of such stock; and such liability shall continue, notwithstanding any subsequent transfer of such stock, for the term of one year after the record of the transfer thereof on the books of the corporation, and for the term of six months, after judgment recovered against such corporation in any suit commenced within the year aforesaid: Provided, that in every such case, the officer first holding the execution shall first ascertain and certify upon such execution, that he cannot find corporate property or estate." Rev. St. 1855, pp. 371, 372, с. 34, art. 1. Section 1, Rev. St. 1855, p. 369, с. 34, provided as follows: And "every corporation, as such has power: First to have succession by its corporate name, for the period limited in its charter, and when no period is limited, for twenty years." Now section 971, Rev. St. 1899 (Ann. St. 1906, p. 862). The return also shows that shortly after Sec. 2. "The corporation hereby created the passage of the original act the incorporashall have perpetual succession." tors organized and established the German Sec. 3. "The corporation hereby created Mutual Life Insurance Company of St. Loushall have power to make insurance predi- is, and they and their successors, respondcated upon the lives of persons and all and ents in this proceeding, have continued ever every insurance appertaining to and con-since to operate a life insurance company For other cases see same topic and section NUMBER in Dec. & Am. Digs. 1907 to date, & Reporter Indexes under that name; and that it has issued of this company was limited to a period of gus. Hence, the technical meaning is reject- | must look for the intention of the parties. ed as soon as the judicial mind is satisfied 1 Morawetz on Private Corporations (2d Ed.) ums. cur. many thousands of policies to its members, insuring them on the several plans or methods customary to the conduct of a life insur. ance company, to wit, contracts, by which the sum insured is payable only on the death of the member or policy holder in consideration for which he pays stipulated premiUnder many forms of such policies, he continues to pay these premiums throughout life and under other forms he pays premiums for a limited number of years and then the premium paying period ceases, although the company is not required to pay the amount insured until his death shall ocThe company has also issued what is known as term insurance policies in consideration of premiums paid during a given term of years, and agrees to pay the amount insured only if death should occur within a limited number of years. It has also issued endowment policies, by which it agrees, for certain premiums stipulated in the policy, to pay the amount insured at a fixed time in the future when the insured reaches a given age, or earlier, in case of his prior death. It has also issued annuities, by which, in consideration of certain premiums, it agrees to pay certain annual or other periodical amounts so long as the insured or annuitant shall live. These several forms of policies were in general use and issued by other life insurance companies at the time this charter was granted; and as to all of these policies the company has, from time to time, set apart from the premium paid to it and from other sources a reserved fund payable to each particular policy when it shall mature. The return also shows that many of the policies which were issued during the earlier years of the company's existence are still in force, and there are still outstanding 127 policies which were issued during that 20 years, aggregating $123,040.25, by the terms of which the company is still obligated to pay the same to such policy holders or to their representatives when they shall die. It is further shown that at the expiration of 20 years from the date of the charter the company had in force 627 separate policies representing outstanding insurance of $957,977.95; and since the expiration of 20 years from the date of the charter the company has paid out to its policy holders the sum of $525,420.60 upon policies which were issued during the first 20 years of its existence. Elliott W. Major, Atty. Gen., and Jno. M. Atkinson, Asst. Atty. Gen., for relator. Walther & Muench and Jones, Jones, Hocker & Davis, for respondents. WOODSON, J. (after stating the facts as above). This record presents but a single legal proposition for determination. It is the contention of the Attorney General, that under section 1, art. 1, c. 34, of the Revised 20 years from the date of its incorporation, and that since that date, viz., November 23, 1877, it has unlawfully exercised the rights, privileges, and franchises of a corporation. This contention is denied by counsel for respondents; and they maintain that the act incorporating the company grants to it a charter perpetual in character. The general rule is, as contended for by the Attorney General, that where a special act creating a corporation uses the term "perpetual succession" in connection with the charter, it implies nothing more than a continuance of succession during the existence of the company, which, in the absence of some special provision to the contrary, is for a period of 20 years, as provided for by the general corporation law which was then in force. This rule of construction has been announced by this court many times in the following among other, cases. Rev. St. 1855, p. 369, c. 34, art. 1, § 1; State ex rel. v. Road Company, 207 Mo., loc. cit. 73, 74, 105 S. W. 752; State ex rel. v. Road Company, 207 Mo., loc. cit. 101, 102, 105 S. W. 761; State ex rel. v. Payne, 129 Mo. 468, 31 S. W. 797, 33 L. R. A. 576; State ex rel. v. Ladies of Sacred Heart, 99 Mo. 533, 12 S. W. 293, 6 L. R. A. 84; State ex rel. v. Lesueur, 141 Mo. 29, 41 S. W. 904; State ex rel. v. Road Company, 138 Mo. 332, 39 S. W. 910, 36 L. R. A. 457; Bradley v. Reppell, 133 Mo. 545, 32 S. W. 645, 34 S. W. 841, 54 Am. St. Rep. 685. Also by the Court of Appeal in State ex rel. v. Road Company, 116 Mo. App. 175, 92 S. W. 153. See, also, 10 Сус. 148. If this rule was universal in its application, and without exception, then clearly the contention of the Attorney General would be unanswerable, and the only remaining thing to be done would be to enter a decree of ouster against respondents in accordance with the prayer of the writ. In fact, we do not understand counsel for respondents to controvert the soundness of the rule as above stated, but they insist that this rule does not apply where it leads to a result manifestly against the object of the enactment, and the purpose the Legislature had in view. Judge Thompson in his work on Corporations, § 5656, states the rule to be, as contended for by respondents, in the following language: "The prime effort of all judicial interpretation is to ascertain what the Legislature really intended in using the particular language." And Endlich on Interpretation of Statutes states the rule as follows: "Words of a statute are to be understood in the sense in which they best harmonize with the subject of the enactment and the object which the Legislature has in view. Their meaning is found not so much in a strictly grammatical or etymological propriety of language, nor even in its popular use, as in the subject or in the action upon which they are used, and the object to be attained." Section 73. "In general, statutes are presumed to use If we apply the former rule of interpretation to the act of incorporating this company, then it would be impossible for it to carry out and fulfill the purposes of its formation, for the reason that life policies may and do remain unmatured and outstanding for a greater period than 20 years; but if the latter is to govern this case, then we endow the company with perpetual-that is, everlasting -existence, which would fully enable it to accomplish the objects and purposes of its creation. The special act in question authorizes the company to transact a general life insurance business, and to issue the various kinds of policies before mentioned, many of which the Legislature knew would not mature and become payable until long after the expiration of 20 years from and after the date of the incorporation. In truth, this record discloses the fact that at the expiration of that period the company had outstanding and unmatured several hundred policies, amounting in round numbers to $1,000,000, and that there is still 127 of them outstanding, aggregating $123,040.25. If we accept relator's construction of this act, then all of these policies became nugatory on the 23d day of November, 1877. To place such a construction upon the act would do violence to the clear object of the enactment and the manifest intention of the Legislature as disclosed by reading the entire act. As was well said by the Supreme Court of the United States in the case of U. S. v. R. R., 150 U. S. 2, 14 Sup. Ct. 15 (37 L. Ed. 975). "While it is well settled that public grants are to be construed strictly against the grantees, they are not to be so construed as to defeat the intention of the Legislature or withhold what is given." §§ 316-323. A corporation whose charter does not limit its existence to a definite period of time continues in legal contemplation until it has been dissolved by some prescribed method. Aside from the first paragraph of section 1 of the General Law of 1845 (Rev. St. 1845, c. 34, art. 1), this corporation would have succes• sion without limitation, as to time. Again, it is conceded upon both sides that the respondent is a charitable institution, and nothing more. It is, therefore, in many respects unlike an ordinary business corporation having shareholders. Most of the provisions of the General Law can have no application whatever to charters like the one now in question. The first section says: 'Every corporation as such has power,' among other things, to make that another is more agreeable to the object and intention." Section 76. "When, for instance, the language in its usual meaning falls short of the whole object of the Legislature, a more extended meaning may be attributed to it, if fairly susceptible of it. The scope of the act being ascertained, the words are to be construed as including every case clearly within that object, if they can do so by any reasonable construction, although they point primarily to another or more limited class of cases." Section 103. "In determining either what was the general object of the Legislature or the meaning of its language in any particular passage, it is obvious that the intention which appears to be most agreeable to convenience, reason, and justice, should in all cases open to doubt the presum-laws 'for the transfer of its stock.' The next ed to be the true one." Section 245. What was said by this court in the case of State ex rel. v. Ladies of Sacred Heart, 99 Mo. 533, 12 S. W. 293, 6 L. R. A. 84, applies equally as well to the facts of this case. In writing that opinion Judge Black, among other things, said: "This charter is to be construed like any other written instrument. We section says: "The powers enumerated in the preceding section shall vest in every corporation that shall hereafter be created, although they may not be specified in its charter,' etc. This provision in relation to stock has no application to this corporation; for it has, and under its charter can have, no shareholders. The same is true in respect of many other of the subsequent successions. It is, therefore, clear that though the General Statute does say that every corporation shall have the designated powers, we must look to the objects and purposes of the particular corporation to see whether it does or can possess all of them. We see no reason why we may not also look to the object and purposes of the corporation to see whether the limitation of 20 years fairly applies to it. Now, it can hardly be believed that the Legislature, in creating this corporation for the purposes, in part at least, of rearing and educating orphans, designed to limit it to 20 years. Such an institution with such a limitation would end about as soon as fairly established. If this charter contained the words 'perpetual succession' instead of simply the word 'succession,' then there would be no limitation as to time, notwithstanding the General Law. It was so held in the case of a business corporation having a capital stock. Fairchild v. Masonic Hall Ass'n, 71 Mo. 526: The purposes of this corporation considered, it is believed we should reach the same result. If the charter on its face discloses a purpose to administer the Mullanphy trust, there can be no occasion for doubt, for the trust is practically perpetual. The charter bears evidence on its face of a determination on the part of the Legislature to make it perfect and complete in itself, and without reference to the General Law. In view of these considerations, and of the objects and purposes for which the corporation was created, we conclude the Legislature intended to and did give to it perpetual succession. This construction carries out what seems to have been the purpose of the Legislature; and it is enough to overcome the limitation in the General Law that it appears from the special * * * charter, taken as a whole, and read like any 2. MASTER AND SERVANT (§ 289*) -INJURIES 10. PLEADING (§ 52*)-SEPARATE STATEMENT | more, a station about 40 miles west of St. OF CAUSES OF ACTION. other written instrument, that the Legislature designed to give it unlimited succession. Indeed, it is a matter of some doubt whether the 20-year limitation in the law of 1845 applies to any purely charitable incorporated association." While Judge Black gave greater weight to the words "perpetual succession" than is warranted by the later cases of State ex rel. v. Payne, 129 Mo. 468, 31 S. W. 797, 33 L. R. A. 576, and State ex rel. v. Road Company, 207 Mo. 54, 105 S. W. 752, still the rule of construction announced by him in that case is sound and applies with great force to the facts of this case. And it may with stronger reason be said in the case at bar that it can hardly be believed that the Legislature in creating this corporation for the purpose of insuring the lives of persons designed to limit its existence for a period of 20 years. Such an insurance company with such a limitation would expire, as is shown by this record, long before the maturity of many of the policies authorized by its charter to be issued during the 20-year period of its existence, and thereby destroy the very insurance which the act contemplated should be issued and paid upon the death of the insured. It may be truly said that life insurance companies are not founded with a view of being maintained for a brief period only, or for any limited time. Their nature and purpose denote perpetuity, and without which it would not be reasonable to suppose men of affairs would organize such companies or invest their money in the same as a protection for their families if they thought such companies might, and in all probability would, be dissolved long prior to the time when their policies would mature and become payable. These observations are supported by the cases of State ex rel. v. Lesueur, 141 Mo. 29, 41 S. W. 904, and State ex rel. v. Board of Trustees of Westminster College, 175 Mo. 52, 74 S. W. 990. So viewing this case in the light of both reason and authority, we are clearly of the pinion that the intention of the Legislature was to make this charter perpetual-that is, everlasting. We are therefore of the opinion that a dissolution of the corporation should be denied, and it is so ordered. All concur. TO SERVANT-CONTRIBUTORY NEGLIGENCEQUESTION FOR JURY. Where two methods of moving a car from one track to another are apparent, whether a brakeman adopted the safer or more dangerous one is a question for the jury. [Ed. Note.-For other cases, see Master and Servant, Cent. Dig. §§ 1121, 1122; Dec. Dig. § 289.*] 3. APPEAL AND ERROR (§ 1002*)-REVIEW QUESTIONS OF FACT. Where the evidence is conflicting as to whether a brakeman adopted the safer or more dangerous method of moving a car from one track to another, the verdict is conclusive. [Ed. Note. For other cases, see Appeal and Error, Cent. Dig. §§ 3935-3937; Dec. Dig. § 1002.*] 4. NEGLIGENCE (§ 97*)-COMPARATIVE NEGLI GENCE. As comparative negligence is not recognized, plaintiff cannot recover for injuries from the negligence of others to which his own negligence directly contributed. [Ed. Note. For other cases, see Negligence, Cent. Dig. § 162; Dec. Dig. § 97.*] 5. MASTER AND SERVANT (§ 289*) - INJURY TO SERVANT - CONTRIBUTORY NEGLIGENCE QUESTION FOR JURY. Where there is evidence that, if the engineer had obeyed the signal given him by plaintiff, there was no particular danger in plaintiff's attempting to couple cars, one of which he knew had a defective coupler, whether plaintiff was guilty of contributory negligence is for the jury. [Ed. Note.-For other cases, see Master and Servant, Cent. Dig. § 1125; Dec. Dig. § 289.*] 6. APPEAL AND ERROR (§ 1064*) -HARMLESS ERROR-INSTRUCTIONS. The error of an instruction requiring a finding that both the engineer and fireman were negligent in failing to obey a signal by plaintiff, when the negligence of either would entitle plaintiff to recover, is not available to defendant. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 4219, 4221; Dec. Dig. § 1064.*] 7. TRIAL (§ 267*) -MODIFYING INSTRUCTIONS. Where the action is based on the failure of the "engineer and fireman" to obey plaintiff's signal, it is proper for the court to modify instructions requested by defendant so as to include the fireman with the engineer in referring to their negligence. [Ed. Note. For other cases, see Trial, Cent. Dig. §§ 668-672, 674; Dec. Dig. § 267.*] 8. TRIAL (§ 260*) - REFUSING INSTRUCTION. The refusal of an instruction fully covered by one already given is not error. [Ed. Note. For other cases, see Trial, Cent. Dig. § 651; Dec. Dig. § 260.*] 9. MASTER AND SERVANT (§ 264*)-ACTION FOR INJURIES TO SERVANT - PLEADING VARIANCE. That the petition for injuries resulting from the negligent failure of the engineer and fireman to observe and obey plaintiff's signal used the conjunction "and" in connecting those persons in the act of negligence does not require proof that they were jointly negligent, and evidence that the fireman was negligent in communicating the signal to the engineer, or the engineer was negligent in obeying such signal, does not constitute a variance. [Ed. Note. For other cases, see Master and Servant, Cent. Dig. § 873; Dec. Dig. § 264.*] Though negligence of different classes, such as common-law and statutory, cannot be united in the same count, where the acts of negligence leading to the same injury are of the same character, any number of distinct acts may be alleged in one count. [Ed. Note.-For other cases, see Pleading, Cent. Dig. $ 114; Dec. Dig. § 52.*] 11. TRIAL (§ 330*) - VERDICT - SEVERAL COUNTS OR ISSUES. Where several acts of negligence are properly alleged in one count of the petition, and plaintiff proves any one of such acts, a general verdict in his favor is sufficient. [Ed. Note. For other cases, see Trial, Cent. Dig. §§ 777-7812; Dec. Dig. § 330.*] 12. APPEAL AND ERROR (§ 1002*) -REVIEWQUESTIONS OF FACT. The verdict of the jury on conflicting evidence and proper instructions, as to the immediate cause of the injury sued for, is conclusive. [Ed. Note. For other cases, see Appeal and Error, Cent. Dig. §§ 3935-3937; Dec. Dig. § 1002.*] 13. DAMAGES (§ 132*)-PERSONAL INJURIESAMOUNT OF RECOVERY. Evidence, in an action for the loss of a thumb and finger, held to justify a judgment for $4,000, but not for $5,000. [Ed. Note. For other cases, see Damages, Cent. Dig. § 384; Dec. Dig. § 132.*] Appeal from Circuit Court, Pike County; David H. Eby, Judge. Action by Andrew J. Richardson against the St. Louis & Hannibal Railway Company. From a judgment for plaintiff, defendant appeals. Affirmed conditionally. Louis on the line of the Wabash Railway Company. The two roads interchange business at this point. Appellant maintains yards at Gilmore. Its main line runs just north of the depot, and the main line of the Wabash runs just south of the depot. North of the depot and appellant's main line are its yards, consisting of three main side tracks extending, in a general east and west course, numbered 1, 2, and 3, and converging at a point curved to the northwest of a coal chute of appellant's. A plat is hereto appended, marked "Exhibit 1," which iliustrates and makes clear the situation in the yards: This cause is pending in this court on appeal from a judgment rendered in the circuit court of Pike county in favor of respondent, Richardson, and against appellant. The action is for damages for injuries received by respondent on the 25th day of September, 1903, at Gilmore, while an employé of appellant. The substance of the charge on which respondent recovered in the circuit court is: That, while he, as one of appellant's brakemen was endeavoring to couple cars, he gave a certain signal to the engineer and fireman in charge of the engine pulling the train of which he and said engineer and fireman were a part of the crew running and operating same; that this signal, although observed and understood, was not heeded; but that the engineer, instead of backing and separating the cars, as the signal indicated, put his engine in a forward motion, suddenly shoved the cars together, and injured the respondent. In other words, it was charged that his injuries were due to the negligence of the engineer and fireman in not heeding and obeying his signal to "slack back easy." The answer was a general denial, charge of contributory negligence, and assumption of risk. The facts upon the record are, substantially: That appellant's rail TO BOWLING GREEN On the day of the injury complained of, Smith as conductor, Collins as engineer, Durell as fireman, respondent as head brakeman, and Lowry as hind brakeman, composed the road runs in a north and south direction, be- crew which ran and operated a mixed train ginning at Hannibal and terminating at Gil-from Hannibal to Gilmore over appellant's *For other cases see same topic and section NUMBER in Dec. & Am. Digs. 1907 to date, & Reporter Indexes |