dissenting.
I respectfully dissent and adopt portions of the dissent of Pritchard, J., without quotation marks, of the Missouri Court of Appeals, Western District, which was filed when this case was decided by the court of appeals.
The majority opinion is based upon the conclusion that no private right is created by a violation of § 379.118. It is to that conclusion which this dissent is principally directed. Certainly in the statutory provision, § 379.118, there is a close analogy to the cases under the service letter statute, § 290.140. The case which announced the existence of a private cause of action under that statute is Cheek v. Prudential Ins. Co., 192 S.W. 387 (Mo.1916). Cheek, although a long line of cases follow it, still stands as the law of this state. It was there contended by plaintiff that the (service letter) statute, which imposed a duty upon an employer to give a letter of dismissal to employees quitting service “truly stating for what cause, if any, such employee has quit such service”, was for the benefit of a class of individuals, a right of action is given to any one of that class who may be damaged by the breach of that duty. The court sustained the contention, quoting and relying upon 1 Corpus Juris, p. 957 [now in substance 1 C.J.S. Actions, § 12, p. 996]: “The true rule is said to be that the question should be determined by a construction of the provisions of the particular statute and according to whether it appears that the duty imposed is merely for the benefit of the public and the fine, or penalty, a means of enforcing its duty and punishing a breach thereof, or whether the duty imposed is also for the benefit of particular individuals, or classes of individuals. If the case falls within the first class, the public remedy by fine, or penalty, is exclusive, but if the case falls within the second class a private action may be maintained, particularly where the injured party is not entitled, or not exclusively entitled, to the penalty imposed.” [Italics here added.] The Cheek court went on to quote 1 Corp. Jur. 952 [now in substance contained in 1 C.J.S. Actions, § 9B, p. 990], “It is a general rule that wherever a statute imposes a duty for the benefit of particular individuals, or classes of individuals, any one within the benefit of the statute who sustains an injury by reason of a breach thereof has a right of action against the person guilty of the breach. The private right of action is not affected by the fact that the statute also makes such breach of duty a criminal offense.”
The majority opinion relies upon Christy v. Petrus, 365 Mo. 1187, 295 S.W.2d 122 (1956), in holding that § 379.118 does not create a private right of action. The Christy case may be distinguished, and it, in fact, distinguishes the Cheek case on its statutory provisions. In Christy, the statute merely imposed a criminal penalty only for the discharge of or discrimination against an employee for exercising his rights under the Worker’s Compensation Act. The court, at 295 S.W.2d page 125, said, “In the Cheek case the court placed great emphasis on the fact that the statute there under consideration enjoined upon the corporate official a positive, affirmative duty to issue the letter and concluded that damages could be recovered for a breach of said duty. In a later case this court again considered that statute and indicated that the first part of the section, relating to the duty of issuing the letter, is remedial and is *951the basis for the damage action against the employer, and the latter portion is penal and may be enforced by the prosecution of the corporate superintendent or manager. State ex rel. Terminal R.R. Ass’n v. Hughes, 350 Mo. 869, 169 S.W.2d 328. It therefore becomes significant to note that the instant section has no provision relating to any positive duty, but merely provides a criminal penalty in the event the employer shall discharge an employee for the reason stated.”
Bailey v. Canadian Shield General Insurance Co., 380 S.W.2d 378 (Mo.1964), is inap-posite to the statutory factual situation of this case, in that the statute, the same as in Christy, imposed no positive, affirmative duty on the alleged malfeasant, thus it is no comfort or support to the majority opinion.
The majority opinion ignores the differentiation between statutes which are purely penal in nature and those which are both remedial and penal in nature, that difference being noted in the Christy case, supra, 295 S.W.2d page 125. The statute here, § 379.118, in an application in accordance with the Cheek case, has aspects both remedial and penal. It is clearly remedial in its provisions that actual reasons for nonre-newal of automobile policies be given to an insured, the obvious purpose of which is to give the opportunity to insured to challenge the correctness of the stated “actual reasons.” In these days of practically compulsory carriage of automobile liability insurance under the financial responsibility act, and the requirements of physical damage and theft insurance of mortgages, and the increasing difficulty of obtaining such insurance coverages, the purpose of the statute, in its protection of insured, becomes more evident. In this case, as stated in the majority opinion under § 374.280, the superintendent of insurance may (not “shall”) impose a forfeiture of $100 for each violation of § 379.118, and revoke licenses for willful violations. Under the Cheek case, supra, that penalty provision does not destroy the remedial provisions of the statute, or the private right of action thereunder. In addition to the Christy case, note State ex rel. Ashcroft v. Wahl, 600 S.W.2d 175, 180[2] (Mo.App.1980), and cases cited, “ ‘[a statute] should be considered a remedial statute when enforcement of the remedy is sought and penal when enforcement of the penalty is sought.’ ”
There is no appellate court ease decided under the provisions of § 379.118 with which the majority opinion is directly in conflict. That situation, however, is not an absolute requirement. An opinion may be in conflict with another decision of an appellate court of this state in principle of law. In Knorp v. Thompson, 352 Mo. 44, 175 S.W.2d 889, 893[1] (1943), Keller v. Summers, 262 Mo. 324, 171 S.W. 336, 338 (1914), was quoted: “ ‘The Constitution was not concerned with the sums of money awarded the plaintiff or other decretal orders of the courts further than these were the consequences of the principles of law and equity announced in the opinion or decision and upon which they were based. What the Constitution designed to prevent was repugnancy of rulings between Courts of Appeals or between them and the Supreme Court, and by “rulings” it meant expositions of the law or the legal reasons upon which the courts vested their judgment on the questions presented or the issues joined. * * * It was harmony of doctrine and adjudication, which this clause of the Constitution was framed to safeguard, * * *.’ ” The majority opinion is repugnant to the principle of law of the Cheek case, supra. I would reverse and remand this case for new trial and, therefore, I dissent.