But it does not follow from that that the pol-1 of the statute. Laun v. Pac. Mutual Life Ins. icy of insurance is void. It will be noted that the statute places a penalty upon the insurance company or its agent or representative who violates this statute, but provides no penalty for the insured. To hold the policies of insurance illegal and void, as contended for by appellant, would result in invalidating many contracts of life insurance aggregating perhaps thou sands of dollars on which the insured have paid many years' premiums, and this because an agent of the company which issued the policies had, with or without the knowledge of the officers of the company, granted a rebate out of the agent's commission of part or all of the first or other premiums. We are unwilling to hold the Legislature intended that an insurance company, where a policy has been issued and some part of the premium returned or rebated, should be permitted to proceed for years thereafter to accept the premiums called for under the policy, and then upon the demise of the insured be permitted to deny any liability under the policy on the ground that it was void ab initio because a rebate had been allowed the insured upon his original or other premium in violation of the statute. Nor can we conceive that it was intended that an insured who had received a rebate should be permitted at any time within the period limited by law for the commencement of such action to recover all premiums which the insured may have paid upon the policy because of his having received such rebate, to the disadvantage of the others insured in such company who had conformed to the law and paid the full amount of the prescribed premiums. To hold otherwise would be to reward the very violators of this statute, and that, too, at the expense of those who strictly adhered to the law. "Insurance companies are engaged in a public business, and upon grounds of public policy insurance contracts that may, in preliminary verbal arrangements between the soliciting agent and the insured, have been tainted with the vice of rebating, should, when fully executed and reduced to writing, be held valid as between the insured and the insurance company; neither of them being allowed to defeat the contract in any part upon the ground that it was secured in the manner stated in violation Co., 131 Wis. 555, 111 N. W. 660, 9 L. R. A. Atl. 794; Rideout v. Mars, 99 Miss. 199, 54 (N. S.) 1204; Quigg v. Coffy, 18 R. I. 757, 30 South. 801 [35 L. R. A. (N. S.) 485, Ann. Cas. 1913D, 770]; Security Life & Annuity Co. v. Costner. 149 N. C. 293, 63 S. E. 304; Interstate Life Assurance Co. v. Dalton, 165 Fed. 176, 91 C. C. A. 210, 23 L. R. A. (N. S.) 722." American National Insurance Co. v. Brown, 179 Ky. 711, 201 S. W. 326. "When the purpose of a statute is * a regulation of a traffic or business, and not to prohibit it altogether, whether a contract which violates the statute shall be treated as wholly void will depend on an intention expressed in the particular statute. Unless the contrary intention is manifest, the contract will be valid." Sutherland, Statutory Construction (2d Ed.) § 503. It is plain that the purpose of our statute is to regulate contracts of insurance, and not to prohibit them. It is equally clear that the statute does prohibit and render void all rebating agreements. Had the Legislature so intended, the statute could have provided that the policy or contract of insurance be void or nonenforceable. The statute is silent as to what effect the violation of the statute shall have upon any policy of insurance that may have fully executed and delivered. It would thus seem that the insured can be required to pay the full amount of the premiums, whilst the agent or company guilty of the rebating can be punished under the statute. Under such a construction of the statute the full purpose of the law is carried out and the ends of justice subserved without invalidating the policy of insurance itself. We therefore hold that, considering the object of this legislation, its effect upon nonoffending policy holders and beneficiaries, and having in mind the particular penalties provided therein for any violation thereof, the contract of insurance itself is neither illegal nor void. Plaintiff received in consideration of his premiums paid valid policies of insurance, and consequently he cannot recover the premiums or any part thereof. It follows that plaintiff's petition fails to state a cause of action, and the court properly sustained the separate demurrers of each of the defendants. The judgment is accordingly affirmed. REYNOLDS, P. J., and ALLEN, J., concur. MCDONALD v. FINLEY et al. (No. 15117.) | filed for rent from. December 1, 1913, to May (St. Louis Court of Appeals. Missouri. June 4, 1, 1914, aggregating $125. The attachment 1918.) feature of the case need not be noticed. It 1. LANDLORD AND TENANT 207(1), 209-IM- appears that the trial in the justice court rePLIED TENANCY-SUBLETTING-LIABILITY sulted in a judgment in favor of plaintiff FOR RENT. Where lessee of an apartment disappeared, leaving wife and adult daughter in possession thereof, the daughter does not, by paying lessor some rent after disappearance of father, make herself liable under Rev. St. 1909, §§ 7900, 7901, as a subtenant or otherwise, for unpaid rent un der lease, after leaving premises before expiration of term, the lessor treating lease as if in force and bringing action thereon. 2. JUSTICES OF THE PEACE 174(8)—APPEAL Where, on appeal from justice to circuit court, a petition in action for rent is amended so as to recover for damage to property and removal of fixtures, such amendment is in violation of Rev. St. 1909, § 7585, providing that same cause of action that was tried before justice court must be tried on appeal therefrom in the appellate court. -AMENDMENT-STATUTE. Appeal from St. Louis Circuit Court; Karl Kimmel, Judge. "Not to be officially published." Action by W. J. McDonald against Mrs. H. T. Finley, Mrs. Kennedy, and another. Judgment for plaintiff in justice court, and defendants named appealed to circuit court, and from judgment there rendered for defendants named plaintiff appeals. Affirmed. Frumberg & Russell, of St. Louis, for appellant. H. W. Femmer, of St. Louis, for respondents. against all of the defendants in the sum of $12.50. From this judgment defendant Finley did not appeal, but his codefendants, Mrs. Finley and Mrs. Kennedy, prosecuted an appeal to the circuit court. peal to the circuit court. In the latter court the plaintiff filed an amended petition, alleging that prior to November 29, 1913, Mrs. Kennedy entered into possession of the premises as a subtenant of the defendant Finley, alleging that $12.50 was due plaintiff as rent, and that in violation of the terms of the lease the defendants damaged the property in the sum of $15, and removed certain fixtures therefrom of the value of $10. Judgment was prayed for $37.50. The cause was tried in the circuit court before the court without a jury, a jury having been waived, and at the conclusion of plaintiff's evidence the court gave a peremptory instruction offered by the defendants, Mrs. Finley and them accordingly. From this judgment the plaintiff prosecutes the appeal before us. [1, 2] Learned counsel for appellant argue that under sections 7900 and 7901, Revised Statutes 1909, Mrs. Kennedy, as a subtenant of Finley, the lessee, became liable to plaintiff for the rent accruing under the lease from December 1, 1913, to May 1, 1914. But the record contains nothing to show that Mrs. Kennedy, who was merely a member of the lessee's household, ever became a subtenant of the lessee; and consequently this argument avails appellant nothing. Mrs. Kennedy, and entered judgment for ALLEN, J. On April 25, 1913, plaintiff, being the owner of a certain "five-room lower flat known as No. 1321 N. Euclid avenue," in the city of St. Louis, leased the same to one H. T. Finley, by written lease of that It is said, however, that Mrs. Kennedy redate, for a term of one year beginning May mained in possession of the premises after 1, 1913, at a rental of $25 per month. Fin- the lessee left the city of St. Louis, and atley with his wife and daughter, a Mrs. Ken- torned to plaintiff as the landlord, whereby nedy, entered into possession of the prem- she became liable for rent under the coveises, and occupied the same for some months. nants of the lessee. When Finley left the The testimony of plaintiff's agent, one Gil- premises, or where he went, does not appear. dersleeve, is that Finley, his wife and Mrs. The affidavit for attachment sets up that he Kennedy, remained in possession of the prem- had absented himself from his usual place ises seven months; that they moved the 29th of abode in this state, so that the ordinary day of November, 1913, having paid the rent process of law could not be served upon him. "to the time of their removal." There is And the evidence merely tends to show that testimony, however, that some time prior to he went away from the premises some time November 29, 1913, Finley "went away," and prior to November 29, 1913, and that some that after he left Mrs. Kennedy paid certain rent was paid to plaintiff's agent by Mrs. rents. Plaintiff's agent testified that when Kennedy. At that time the lease was still he went to the premises to collect the rent in force, and plaintiff continued to treat it in September or October Mrs. Kennedy told as in force, and instituted this action upon him that she was paying the rent, and that it before the justice of the peace. The mere she declined to pay rent until some minor fact that while the lease was in effect some repairs were made. According to the tes- rent came to plaintiff from the hands of timony for plaintiff the premises were relet Mrs. Kennedy, a member of the tenant's to another tenant on December 15, 1913. family, did not make her liable upon the This suit was begun, by attachment, before a covenants of the lease to pay future rents. justice of the peace, against Finley, Mrs. See Sickel v. Davis, 200 S. W. 127. It apFinley, and Mrs. Kennedy, upon an account pears that the alleged damage to the prem For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes and counterclaim. The court by its instructions submitted to the jury the causes of action contained in both the plaintiff's petition and the defendant's counterclaim. The jury returned the following verdict: ises and the removal of fixtures appeared for the first time in the amended petition in the circuit court in violation of section 7585, Revised Statutes 1909. But in any event there is nothing to make it appear that either of these respondents was in any wise liable "We, the jury in the above-entitled cause, for such damage or loss, if any. do find the issues joined in favor of plaintiff on the first count of his petition and assess It follows that the judgment should be his damages at the sum of $150.00. We furaffirmed; and it is so ordered. ther find in favor of plaintiff on the second count of plaintiff's petition and assess his REYNOLDS, P. J., and BECKER, J., con- damages at the sum of $12.50 (total $162.50)." (St. Louis Court of Appeals. Missouri. June A verdict is part of the record proper, and as such is subject to review on appeal. 2. TRIAL 329-VERDICT-RESPONSIVENESS TO ISSUES. A verdict must be so responsive to the issues as to afford the parties protection against same claim in another action. 3. TRIAL 329-VERDICT NOT RESPONSIVE. Where jury found for plaintiff, but made no affirmative finding upon the two counts of a counterclaim interposed by defendant, although causes of action therein had been submitted to it, the verdict was not responsive to the issues. Appeal from St. Louis Circuit Court; Karl Kimmel, Judge. "Not to be officially published." Action by George Gawk against B. M. Millovich. Judgment for plaintiff, and defendant appeals. Reversed and remanded. John A. Nolan, of St. Louis, for appellant. William Zachritz, of St. Louis, for respondent. The verdict is thus silent with reference to the defendant's counterclaim. Judgment, however, was entered in accordance with said. verdict against the defendant and in favor of plaintiff in the sum of $162.50. Defendant filed a timely motion in arrest of judgment. One of the grounds assigned therein for setting aside the verdict rendered in the case is because the verdict of the jury is incomplete, in that it fails to make any finding on either of the counts of defendant's counterclaim. Upon the court overruling the motion in arrest of judgment the defendant brings this appeal. [1, 2] It needs no citation of authorities that it is the well-settled rule in this state that if the verdict is not responsive to the issues or is uncertain or indefinite it is open for review on appeal or writ of error as a part of the record proper; also that the verdict must be so responsive to the issues as to afford the parties protection against the same claim in another action. "If the jury find only part of the issues, judgment must not be entered on the verdict. It is void for the whole, and a venire de novo will be award ed." 1 Graham & Waterman on New Trials, 140. [3] The verdict before us is incomplete, in that it contains no finding on two of the issues submitted to the jury, namely, the two counts set up in defendant's counterclaim. We hold the defendant was entitled to a distinct verdict thereon. The jury having failed to return affirmative findings as to these counterclaims, the court should have sustained defendant's motion in arrest of judgment and awarded a new trial. Erdbruegger v. Meier, 14 Mo. App. 258; Henderson v. Davis, 74 Mo. App. 1; Marshall v. Armstrong, 105 Mo. App. 234, 79 S. W. 1161; Advance Thresher Co. v. Speak, 167 Mo. App. 470, 151 S. W. 235. The judgment is accordingly reversed and the cause remanded. BECKER, J. Plaintiff filed his cause of action in the justice court, and in the first count of his petition claims the sum of $150 for personal services rendered the defendant, and in the second count claims a balance due him from defendant of $12.50 out of a fund which he had deposited with defendant's wife for safe-keeping. Defendant's answer is a general denial to each of the counts and a separate answer and counterclaim in two counts. In the first count defendant claims that plaintiff is indebted to him in the sum of $154.98, being a balance due the defendant for moneys which came into the hands of the plaintiff while the plaintiff was in charge of defendant's business, and which plaintiff failed to turn over to the defendant. In the second count defendant claims that plaintiff is indebted to him for moneys advanced in a sum aggregating $81.95. Plaintiff's reply is a general denial. There was substantial evidence introduced by plaintiff in support of (St. Louis Court of Appeals. Missouri. the allegations contained in both counts of his petition, and there was likewise sub- 1. MUNICIPAL CORPORATIONS 120 - ORDIstantial evidence introduced by the defend- Ordinances like statutes are construed in ant in support of both counts of his answer accordance with legislative intent, and where REYNOLDS, P. J., and ALLEN, J., concur. (199 Mo. App. 550) NORTON v. EAST ST. L. RY. CO. (No. 15166.) 4, 1918.) NANCES-CONSTRUCTION. June tention inconsistent therewith. the language of an ordinance is clear and con- | allegations of his amended petition failed to cise, and admits of only one interpretation, the make out a case, unless the ordinance recourt will not impute to the legislators an in- lied upon can be construed to limit the speed of cars to 12 miles per hour. But we do not think that the ordinance is subject to this construction. 2. STREET RAILROADS 74 - REGULATION SPEED-CONSTRUCTION OF ORDINANCE. Revised Ordinances, City of East St. Louis 1908, § 1240, subsec. 1, providing that street cars shall not run "at a greater average speed between terminals than twelve miles an hour," does not limit street cars to a maximum speed of twelve miles an hour but merely restricts average speed between terminals. Appeal from St. Louis Circuit Court; J. Hugo Grimm, Judge. peals. Reversed and remanded. Holland, Rutledge & Lashly, of St. Louis, for appellant. John C. Robertson, of St. Louis, for respondent. [1, 2] While it is true that the legislative intent is the cardinal rule of the construction of ordinances as well as of statutes, yet that does not authorize or warrant a court in speculating as to what might have been intended by such ordinance or statute. There is nothing whatever before us excepting the ordinance itself; it prohibits any street car Action by Howard Norton, by his next from being run along the streets of the city friend, Walter R. Norton, against the East of East St. Louis, Ill., “at a greater average St. Louis Railway Company, a corporation. Judgment for plaintiff, and defendant ap-speed between terminals than twelve miles. per hour." (Italics ours.) The language of the ordinance is clear and concise, and admits of but one interpretation. Learned counsel for respondent contends the ordinance contains a "joker," and that the ordinance was really intended to limit the speed of cars to a maximum speed of 12 miles per hour. Even though we were convinced that such were the case, concerning which, however, we do not express an opinion, we would still be without authority to emasculate the statute in keeping with such view in light of the record before us. While it is within the jurisdiction and the duty of the court to construe any legislative enactment because of indefiniteness and uncertainty, and while the courts will endeavor to adopt a construction which will make the statute operative when possible to do so consistent with reason, yet it is not a function of the judiciary either directly or indirectly to enact legislation nor read into any such enactment that which is not either expressed in the statute itself or appears to have been intended thereby. We therefore are constrained to hold that the ordinance relied upon by plaintiff cannot be construed as limiting street cars to a maximum speed of 12 miles per hour, as contended for by appellant, but that said ordinance merely restricts the operating of street cars "at a greater average speed between terminals than twelve miles per hour." BECKER, J. This is an action for damages on account of personal injuries sustained by reason of a collision between the plaintiff while riding a motorcycle, and one of the defendant's street cars. The collision occurred at the intersection of Seventh street and Illinois avenue in the city of East St. Louis, Ill. The case was heard in the circuit court of the city of St. Louis resulting in a judgment in favor of plaintiff and against defendant in the sum of $450. Defendant in due course brings this appeal. Plaintiff's amended petition was based upon an alleged ordinance of the city of East St. Louis limiting the speed of street cars to ten miles per hour, and the alleged negligence of the defendant in operating a street car at a rate of speed in excess thereof. The answer was a general denial and a plea of contributory negligence. At the trial of the case it developed that the ordinance pleaded in the petition had been amended, whereupon plaintiff amended his petition by leave. The ordinance as amended is section 1 of section 1240 of the Revised Ordinances of the City of East St. Louis, Ill., of 1908, which reads as follows: "No street railway or interurban railway company shall by itself, agent or employés, run any street car upon, on or along any of the streets of the city at a greater average speed between terminals than twelve miles per hour. Any person or corporation violating the provisions of this section shall be fined not less than ten dollars nor more than two hundred dollars for each offense." In view of what we have said above, we hold the court committed prejudicial error in reading the following instruction to the jury: "You are instructed that the lawful rate of speed for street cars in the city of East St. Louis at the time of the collision referred to in this case was twelve miles per hour, and you are further instructed that operating a at the place of the collision was negligence." street car in excess of twelve miles per hour The judgment is accordingly reversed, and Plaintiff tried his case upon the theory that the said ordinance limited the speed of street cars to 12 miles per hour, and an instruction given by the court at the request of plaintiff was predicated upon a like in- the cause remanded. terpretation. A careful reading of the record before us shows that plaintiff under the REYNOLDS, P. J., and ALLEN, J., concur. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes (134 Ark. 358) and misrepresentation, or unless they ex(No. 5.) pressly contract to assume personal liability." As is said by the Supreme Court of Minne HENDRIX et al. v. MORRIS et al. (Supreme Court of Arkansas. May 27, 1918.) 1. SCHOOLS AND SCHOOL DISTRICTS 62 DIRECTORS-LIABILITY FOR UNAUTHORIZED EXPENDITURES. Directors of a school district are not personally liable to the district for money paid out on warrants drawn for purchasing, maintaining, and operating an automobile truck and corveying children to and from school, which was unauthorized, in the absence of willful or malicious action in such matter, since under Kirby's Dig. §§ 7613, 7614, the directors act in a quasi judicial capacity. 2. SCHOOLS AND SCHOOL DISTRICTS 63(3) TREASURERS-LIABILITY FOR UNAUTHORIZ ED EXPENDITURES. Since under Kirby's Dig. §§ 7627, 7628, 7665, the school treasurer can honor only warrants properly drawn, he is liable for moneys paid out on warrants for unauthorized expenditures, though drawn by the directors. Appeal from Circuit Court, Lonoke County; Thos. C. Trimble, Judge. Action by S. C. Hendrix and others against G. W. Morris and others. From the judgment dismissing the complaint, plaintiff's appeal. Affirmed in part, and in part revers ed and remanded.. Jas. A. Comer, of Little Rock, for appellants. Jas. B. Gray, of England, Ark., for appellees. WOOD, J. [1] The question on this appeal is whether or not the appellees, school directors of England special school district and the treasurer of Lonoke county are individually liable to the district for money, which the treasurer paid out of funds belonging to the district, on warrants drawn by the directors to pay for the purchasing, maintaining, and operating an automobile truck in conveying school children to and from the public schools at England, Lonoke county, Ark. In Hendrix v. Morris, 127 Ark. 222, 225, 191 S. W. 919, we held that the directors of this district and the treasurer had no authority to expend the money of the district for such purposes, but it does not follow that the directors are individually liable for the money thus expended. While it is alleged and admitted that the directors had no authority to issue the warrants for the purposes mentioned, there is no allegation that they acted willfully or maliciously. This is essential in order to make the directors personally liable. Where school directors act in good faith, believing at the time that they have authority under the statute to expend the money for the purposes for which they issue warrants, they will not be held individually liable to the district for moneys so expended, even though they have no such authority. "The general rule," says 35 Cyc. p. 910, "is that the officers of a school district cannot be held personally liable on a contract made on their part as such officers, and solely for the benefits of the district, unless guilty of fraud sota: "Were the rule otherwise, few persons of responsibility would be found willing to serve the public in that large capacity of offices, which requires a sacrifice of time and perhaps money, but affords neither honor nor profit to the incumbent." Sanborn v. Neal et al., 4 Minn. 140 (Gil. 83) 77 Am. Dec. 502. The statute prescribes that the directors shall have charge of the school ffairs and of the school educational interests of their district, etc.; that they shall make provisions for establishing separate schools for white and colored children and youths, and adopt such other means as they may judge expedient for carrying the free school system into effectual and uniform operation throughout the state, and providing as nearly as possible for the education of every youth. Sections 7613, 7614, Kirby's Digest. These and other duties prescribed, and other statutory requirements found in chapter 142, Kirby's Digest, show that the directors in many instances must act in a quasi judicial capacity and exercise their discretion and best judgment in the management of the school affairs intrusted to them. Hence the reason for the rule that, for a mere mistake or error of judgment on their part, they shall not be held personally liable. Such is the doctrine of our decisions and of the authorities generally. First National Bank of Waldron v. Whisenhunt, 94 Ark. 583, 127 S. W. 968, and cases there cited. See, also, McCormick v. Burt, 95 Ill. 263, 35 Am. Rep. 163, and other cases cited in appellee's brief. The court was therefore correct in holding that the appellees, school directors, were not liable. [2] 2. A different rule, however, applies to the treasurer. He is only authorized to pay out money on the orders or warrants of the board of directors of the school district "properly drawn." The law requires that the directors shall draw orders on the treasurer for the payment of the wages due teachers or for any lawful purpose, and they shall state in every such order the services or consideration for which the order is drawn, and that when the warrants are properly drawn he shall honor the same out of the funds, in his hands for that purpose, belonging to the district. Sections 7627, 7628, 7665, Kirby's Digest. When a warrant, therefore, is presented to the treasurer for payment for an unauthorized purpose, the treasurer pays the same at his peril, and is personally and individually liable to the district for the moneys unlawfully expended. The judgment of the trial court, dismissing appellants' complaint against the appellees, directors, is therefore affirmed. The judgment dismissing the complaint against the treasurer is erroneous, and is therefore reversed, and the cause as to him is remanded for a new trial. |