GRAVES, J.
Upon re-assignment this cause has fallen to me. It is an original proceeding here in
certiorari, to
quash the record of the St. Louis Court of Appeals in the case of Herman Kistenmacher v. Travelers Indemnity Company, recently pending, and decided by the St. Louis Court of Appeals. The only question in the case is the alleged conflict of opinions. The opinion of the Court of Appeals is short, and we think well reasoned (if its soundness of reasoning were
a question here), and that all the facts may be before us we quote such opinion in full, as follows:
“This is an action brought by plaintiff against defendant to recover on a policy of burglary insurance, dated March 8, 1920, covering household goods, articles of silverware, wines, liquors, beverages etc.
“Plaintiffs alleged that on October 29, 1920, he suffered a loss of two barrels of whiskey and a twenty-four-piece set of silverware. The whiskey was alleged to be worth $2,000 a barrel, and the silverware $100. The amount of indemnity for the liquor was $3,000. Plaintiff asked judgment for $3,100.
“The defendant, in its amended answer, upon which it went to trial, pleaded as a defense, among other things, that the plaintiff had acquired no title to the whisky which was stolen, and had no insurable interest therein, because the same rras acquired in violation of law.
“The reply was a general denial.
“At the close of the whole case the parties, in open court, agreed to waive the trial by a jury. The jury was discharged and the cause submitted to' the court, sitting as a jury. The court, after refusing certain declarations of law requested by defendant, found the issues for plaintiff, and defendant appeals.
“The evidence discloses that plaintiff paid the premiums on the policy in suit. At the time the policy was issued he was living at 4533 Wichita Avenue in the city of St. Louis. The premises where he lived consisted of a two-family flat. The plaintiff occupied the upstairs portion of the building and also the basement. He had lived there almost two years prior to the issuance of the policy. His brother-in-law owed him $3,000 in borrowed money, and, being unable to repay him in cash, according to plaintiff’s testimony, the brother-in-law, Theodore Lutz, who had been a dealer in liquors, paid plaintiff the debt he owed him with two barrels of whiskey, which were delivered to plaintiff on the 16th of January, 1920, and a few hours before the Volstead law went into effect. Lutz had borrowed the money from plaintiff during the year 1919 in several different amounts, totaling the sum of $3,000. The whiskey was agreed upon as a method of paying the debt about the 14th or 15th of January, 1920. On October 29, 1920, while plaintiff and his wife were away from home, someone entered the premises, broke the lock upon the locker in the basement, and removed the whiskey from the barrels. Plaintiff testified that he immediately notified the defendant of his loss, but the written proofs of loss were not made until he was visited by an adjuster for the defendant on March 8, 1921. In these written proofs of loss he gave the date of the acquirement of the whiskey as March 5, 1920. However, he explained that in his tes
timony, and there is substantial testimony to shoiv that the whiskey was acquired by plaintiff, and the delivery made to him, prior to the taking effect of the Volstead Act.
‘ ‘ There is considerable testimony brought out on cross-examination as to the amount of salary plaintiff was receiving, for the purpose of showing that the sale as made by the brother-in-law to plaintiff was not a bona-fide transaction. But the finding of the court in a law case is conclusive upon appeal when supported by substantial evidence, and there is ample evidence to sustain the finding that the sale was actually made to plaintiff or attempted to be made on the date above mentioned by plaintiff.
“Plaintiff also offered in evidence the second amended answer filed by defendant, which admitted the loss of the silverware of the value of $100. In view of the questions presented on this appeal, it becomes unnecessary to further refer to the facts at this time.
“The points made by defendant, and urged as grounds for a reversal of this case, are nine in number, but when considered are really boiled down to two. The first is that plaintiff had no insurable interest in this property, because, even conceding that it was purchased during the time the war-time Prohibition Act was in effect, and prior to the taking effect of the National Prohibition Act, such purchase was made in violation of law, and, therefore, plaintiff acquired no insurable interest. The second proposition urged by defendant is that there was nothing to show the value of the silverware.
“It is a well-settled proposition of law, and one invoked by the plaintiff in this case, that when a contract is only connected in a remote way with an unlawful transaction, if such contract is supported by an independent consideration, and plaintiff can make out his case without relying upon the unlawful transaction, the contract is valid and should be enforced. The defendant contends, however, that plaintiff cannot make out his ease without relying upon the unlawful sale of the whiskey to plaintiff by Lutz. Among the cases relied upon by defendant to support its contention is the case of State ex rel. Connecticut Fire Ins. Co. v. Cox, 268 S. W. 87. In that case one Howell sued an insurance company on a policy of fire insurance. The Supreme Court held that he could not maintain the action against the insurance company, because he had no insurable interest in the automobile, the reason of this being that he had failed to comply with the mandatory terms of the statute in the purchase of the car. The law made certain requirements with respect to the assignment of the certificate of ownership, and specifically provided that in ease these requirements were not followed such an attempted sale ‘shall be fraudulent and void.’ The war-time Prohibition Act nowhere undertook to destroy the title to whiskey purchased in violation of its provisions, but provided a penalty for its violation. The
National Prohibition Act, or what is sometimes called the Volstead law, prohibited the title being taken to whiskey procured or attempted to be procured in an unlawful manner. Prior to the enactment of the National Prohibition Act, whiskey was recognized as property. [Amos v. United States, 255 U. S. 313; Voorhies v. United States, 299 Fed. 275.] As we stated before, there is substantial evidence to show that the purchase was made prior to the date the National Prohibition Act went into effect. At that time the mere possession of whiskey was not unlawful, and the evidence does not disclose' that plaintiff intended to use it for an unlawful purpose.
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GRAVES, J.
Upon re-assignment this cause has fallen to me. It is an original proceeding here in
certiorari, to
quash the record of the St. Louis Court of Appeals in the case of Herman Kistenmacher v. Travelers Indemnity Company, recently pending, and decided by the St. Louis Court of Appeals. The only question in the case is the alleged conflict of opinions. The opinion of the Court of Appeals is short, and we think well reasoned (if its soundness of reasoning were
a question here), and that all the facts may be before us we quote such opinion in full, as follows:
“This is an action brought by plaintiff against defendant to recover on a policy of burglary insurance, dated March 8, 1920, covering household goods, articles of silverware, wines, liquors, beverages etc.
“Plaintiffs alleged that on October 29, 1920, he suffered a loss of two barrels of whiskey and a twenty-four-piece set of silverware. The whiskey was alleged to be worth $2,000 a barrel, and the silverware $100. The amount of indemnity for the liquor was $3,000. Plaintiff asked judgment for $3,100.
“The defendant, in its amended answer, upon which it went to trial, pleaded as a defense, among other things, that the plaintiff had acquired no title to the whisky which was stolen, and had no insurable interest therein, because the same rras acquired in violation of law.
“The reply was a general denial.
“At the close of the whole case the parties, in open court, agreed to waive the trial by a jury. The jury was discharged and the cause submitted to' the court, sitting as a jury. The court, after refusing certain declarations of law requested by defendant, found the issues for plaintiff, and defendant appeals.
“The evidence discloses that plaintiff paid the premiums on the policy in suit. At the time the policy was issued he was living at 4533 Wichita Avenue in the city of St. Louis. The premises where he lived consisted of a two-family flat. The plaintiff occupied the upstairs portion of the building and also the basement. He had lived there almost two years prior to the issuance of the policy. His brother-in-law owed him $3,000 in borrowed money, and, being unable to repay him in cash, according to plaintiff’s testimony, the brother-in-law, Theodore Lutz, who had been a dealer in liquors, paid plaintiff the debt he owed him with two barrels of whiskey, which were delivered to plaintiff on the 16th of January, 1920, and a few hours before the Volstead law went into effect. Lutz had borrowed the money from plaintiff during the year 1919 in several different amounts, totaling the sum of $3,000. The whiskey was agreed upon as a method of paying the debt about the 14th or 15th of January, 1920. On October 29, 1920, while plaintiff and his wife were away from home, someone entered the premises, broke the lock upon the locker in the basement, and removed the whiskey from the barrels. Plaintiff testified that he immediately notified the defendant of his loss, but the written proofs of loss were not made until he was visited by an adjuster for the defendant on March 8, 1921. In these written proofs of loss he gave the date of the acquirement of the whiskey as March 5, 1920. However, he explained that in his tes
timony, and there is substantial testimony to shoiv that the whiskey was acquired by plaintiff, and the delivery made to him, prior to the taking effect of the Volstead Act.
‘ ‘ There is considerable testimony brought out on cross-examination as to the amount of salary plaintiff was receiving, for the purpose of showing that the sale as made by the brother-in-law to plaintiff was not a bona-fide transaction. But the finding of the court in a law case is conclusive upon appeal when supported by substantial evidence, and there is ample evidence to sustain the finding that the sale was actually made to plaintiff or attempted to be made on the date above mentioned by plaintiff.
“Plaintiff also offered in evidence the second amended answer filed by defendant, which admitted the loss of the silverware of the value of $100. In view of the questions presented on this appeal, it becomes unnecessary to further refer to the facts at this time.
“The points made by defendant, and urged as grounds for a reversal of this case, are nine in number, but when considered are really boiled down to two. The first is that plaintiff had no insurable interest in this property, because, even conceding that it was purchased during the time the war-time Prohibition Act was in effect, and prior to the taking effect of the National Prohibition Act, such purchase was made in violation of law, and, therefore, plaintiff acquired no insurable interest. The second proposition urged by defendant is that there was nothing to show the value of the silverware.
“It is a well-settled proposition of law, and one invoked by the plaintiff in this case, that when a contract is only connected in a remote way with an unlawful transaction, if such contract is supported by an independent consideration, and plaintiff can make out his case without relying upon the unlawful transaction, the contract is valid and should be enforced. The defendant contends, however, that plaintiff cannot make out his ease without relying upon the unlawful sale of the whiskey to plaintiff by Lutz. Among the cases relied upon by defendant to support its contention is the case of State ex rel. Connecticut Fire Ins. Co. v. Cox, 268 S. W. 87. In that case one Howell sued an insurance company on a policy of fire insurance. The Supreme Court held that he could not maintain the action against the insurance company, because he had no insurable interest in the automobile, the reason of this being that he had failed to comply with the mandatory terms of the statute in the purchase of the car. The law made certain requirements with respect to the assignment of the certificate of ownership, and specifically provided that in ease these requirements were not followed such an attempted sale ‘shall be fraudulent and void.’ The war-time Prohibition Act nowhere undertook to destroy the title to whiskey purchased in violation of its provisions, but provided a penalty for its violation. The
National Prohibition Act, or what is sometimes called the Volstead law, prohibited the title being taken to whiskey procured or attempted to be procured in an unlawful manner. Prior to the enactment of the National Prohibition Act, whiskey was recognized as property. [Amos v. United States, 255 U. S. 313; Voorhies v. United States, 299 Fed. 275.] As we stated before, there is substantial evidence to show that the purchase was made prior to the date the National Prohibition Act went into effect. At that time the mere possession of whiskey was not unlawful, and the evidence does not disclose' that plaintiff intended to use it for an unlawful purpose. There is a difference between enforcing'an insurance contract insuring things which it is unlawful for one to have in his possession — such as counterfeit coins, lottery tickets and gambling implements — and insuring whiskey which plaintiff had a lawful right to have in his possession and use in the manner which he indicated that he intended to use this, namely, for himself and his bona-fide guests. [Voorhies v. United States, supra.]
“If the evidence had disclosed in this ease that the defendant undertook, to insure plaintiff in an unlawful, illegal business, a different result would be reached. But, prior to the taking effect of the National Prohibition Act whiskey was recognized as property, and the mere fact that plaintiff had the whiskey in his possession did not necessarily indicate that he intended to violate the law by making an illegal use of the same. In fact, the evidence shows to the contrary. [Kellogg v. German-American Ins. Co., 133 Mo. App. 391, 113 S. W. 663.] Nothing in the contract of insurance indicates any purpose or intention to violate the law, and we cannot say, as a matter of law, that plaintiff entered into a contract of insurance to protect himself in illegal acts. There was a valid consideration. The defendant accepted plaintiff’s money, and still has it. The question of how plaintiff obtained the whiskey is merely incidental in this” case, and the insurance was not necessarily intended to encourage acts in violation of law.
“As above stated, the war-time Prohibition Act did not declare that no title should pass to whiskey bought in violation of its terms, but merely provided a penalty. Nor is there anything in the laws of this State declaring such a contract of insurance as this void; and, therefore, we are of the opinion that it ought to be enforced against the company. [Lumberman’s Mut. Ins. Co. v. R. Co., 149 Mo. 165, 50 S. W. 281.] Among the cases supporting this conclusion may be cited the following: Niagara F. Ins. Co. v. DeGraff, 12 Mich. 124; Armstrong v. Toler, 11 Wheat. (U. S.) 258; Erb v. German-Ameriean Ins. Co., 98 Iowa, 606; Mechanics’ Ins. Co. v. Hoover Distilling Co., 182 Fed. 590.
“It
is also contended that there was nothing to show the value of the silverware. However, defendant, in its second amended answer filed in this case, and which was introduced in evidence, admitted that the silverware was of the value of $100, and it is in no position to complain at this time.
“We are of the opinion that the judgment should be affirmed.”
• As said, supra, the only question before us is the one of conflict of opinions. Even if the Court of Appeals is wrong in its opinion, such fact is unavailing in this action, unless the said opinion conflicts with one or more opinions of this court, which the Court of 'Appeals failed or refused to follow. The case before the Court of Appeals, by appeal from the circuit court, was one within the jurisdiction of the Court of Appeals, and its action therein is final, unless such court has failed to follow some previous rulings of this court. Upon new questions and questions not heretofore ruled by this court, the Court of Appeals may even decide wrong, and yet there would be no remedy in this kind of a proceeding. So we proceed to the alleged conflict of opinions, in the paragraphs to follow.
I. The Court of Appeals ruled (1) that there was evidence upon which the trial court could find (as it did find) that the whiskey was acquired before the National Prohibition (Yolstead) Act went into effect; (2) that it was acquired under the war-time Prohibition Act, and that such act did not destroy title to the whiskey, but only provided a penalty for a violation of the act; (3) that prior to the National Prohibition Act, and after the war-time Prohibition Act, whiskey was recognized and held to be property; (4) that possession of whiskey was not unlawful under the war-time Prohibition Act, and that there was no evidence that plaintiff in the circuit court action was using the whiskey in an unlawful manner, although he had it in his possession, and (5) that under the facts of the case there was nothing to show that the plaintiff in the circuit court suit did not have an insurable interest therein, and further: ‘ ‘ There is a difference between enforcing an insurance contract insuring things which it is unlawful for one to have in his possession — such as counterfeit coins, lottery tickets and gambling instruments — and insuring whiskey which plaintiff had a lawful right to have in his possession and use in the manner which he indicated that he intended to use this, namely, for himself and his bona-fide guests. [Voorhies v. United States, supra.]”
The ultimate question involved is what title, if any, was acquired in whiskey purchased and paid for under the war-time Prohibition Act, where there was no intent to use the same further than for private use. If there was property in whiskey, as the Court of Appeals ruled, then it was insurable. But of this further in the following paragraphs.
II. We are cited to no case from this court holding, (1) that whiskey was not property, and not insurable property under the war-time Prohibition Act, or (2) that there was no insurable interest therein. Absent a ruling of this court upon the question, the Court of Appeals was at liberty to blaze the way in this new field.
To a great extent both sides have briefed this case on the theory that it was here upon appeal. We shall not be led astray by this course of presenting the case. We shall dispose of the case upon the theory of conflict or no conflict. It is a useless expenditure of vital energy for counsel to make elaborate briefs upon what they think should be the law in the case decided by the Court of Appeals, in a
certiorari
proceeding of this character. They should confine briefs to the issue to be determined in such a ease. As said, supra, no case in this court has been cited to us, wherein the interest and title to whiskey by a purchaser under the war-time Prohibition Act has been passed upon by this court. Nor is there cited an analogous case. The cases of Sumner v. Summers, 54 Mo. 340, and State ex rel. v. Cox, 306 Mo. 537, are among those cited. Neither of them involve the question presented to the Court of Appeals in this case. In Sumner v. Summers, supra, we have a suit upon a note, a part of the consideration of which -was the agreement not to further prosecute a charge of felony. There the unlawful act and agreement was a part and parcel of the contract in suit, and was an act between the parties. The rule there is not involved in the case at bar. In State ex rel. v. Cox, supra, we find nothing in conflict with the ruling of the Court of Appeals. The ruling is briefly stated in the single syllabus 'to the opinion, thus:
“The provision of the Motor Vehicle Act of 1921 (Laws 1921, Ex. Sess., p. 90, sec. 18), requiring the assignment by the holder of a certificate of ownership of an automobile, in case of sale, to be made upon the back of the certificate and returned as a part of said certificate to the commissioner, is mandatory, and therefore the execution and delivery of a separate bill of sale, by such owner, to a purchaser, is not a substantial compliance with said law. Said act declared in express terms that a sale of an automobile shall be declared fraudulent and void, unless the vendor attaches his signature to the assignment on the back of the certificate of title, and courts cannot by judicial construction say that a separate bill of sale is valid. The requirements of the act, being mandatory, cannot be dispensed with and some other method of assignment be substituted in lieu thereof; and the Court of Appeals in ruling to the contrary, and in holding that other methods amount to substantial compliance, contravened the construction often placed by this court upon laws of a similar nature. ’ ’
This case is passing’ upon an act which made a sale and transfer of an automobile fraudulent and void unless the assignment upon the back of the certificate of title, issued by the Secretary of State, was duly executed and returned to such officer. It passes upon no question involved in the case before us. Other cases cited are not as near the point as the two we have mentioned. So, until this court shall give a construction of the war-time Prohibition Act, and the interest and title to whiskey bought thereunder, the Courts of Appeals have a clear field for their own views of the law. We do not desire to go further than to say, that we find no conflict between the opinion of the Court of Appeals in this case, and our cases. So finding, our'writ should be quashed, and the record of the Court of Appeals thus left to stand.
It is so ordered.
All concur, except
Walker, J.,
who dissents, and
Ragland, J.,
who dissents and concurs with the dissent of
Walker, J.