American Farmers Insurance Co. of Phoenix v. Thomason
234 S.W.2d 37
Ark.
1950
Check Treatment

*1 Company Insurance American Farmers Thomason, Gdn. Arizona Phoenix, 2d 37 4-9251 opinion. Substituted Original opinion 1950. delivered October

Rehearing denied December appellant. R. D. for Rouse,

Tompkins, McKenzie and P. Smith, & McRae L. appellee. against J. This is an action in- Leflar,

surance on a contract accident insurance entered into in another with substituted service state, on the defendant summons served on the provisions State Insurance Commissioner under the appeared specially § 66-244. Defendant Stats. jurisdiction, by a motion to be discussed hereinafter. motion dismiss for lack of was over- pleaded saving ruled. Defendant then still merits, *2 jurisdictional by sitting issue. On trial the Court jury, judgment plaintiff, without a was for and defend- appeals. ant corporation.

Defendant is an Arizona insurance There was evidence that in 1949, about the time the present brought, doing action was defendant had been business in Arkansas without and this authorization, may by be assumed to be a fact. It was established stipulation parties policy that the insurance sued upon was entered in into California in 1944 while the temporarily insured, a resident of Arkansas, was em- ployed in California, that the insured while still in injury California suffered an -which was within the coverage policy. There was no evidence whatever doing that defendant was business in Arkansas at the policy time the was executed and delivered in California. (1) The purporting service on defendant, to be under § 66-244 Statutes, was not authorized ‘‘ provides: that statute. That enactment The transact- ing by foreign of business in this state or alien insurer authority without a certificate of and the issuance or delivery by policy such or alien insurer of a or contract of insurance to a citizen of this state or to a equivalent appointment resident thereof ... by such insurer of the Insurance Commissioner . . . attorney, upon to be its true and lawful whom process served all lawful proceeding- or action, suit ” arising policy out of such or contract of insurance . . provides The statute for substituted service on the Com- only “arising missioner policy suits out of such policy contract of insurance”, is, a or contract issued to a citizen or resident of Arkansas an insur- company doing ance which is business in Arkansas with- only plaintiff’s out policy authorization. Not was not issued in but Arkansas, there is no evidence the record doing any that defendant was business in Arkansas when statutory mode of service policy issued.1 was in such circumstances. is not authorized process Apart the Fed clause of from the due that, service if substituted be violated would eral Constitution permitted. plaintiff A-similar for were contends such as Wayne problem presented Ass’n Mutual in Old was Life McDonough, L. Ed. 345. 236, 51 8, 27 S. 204 U. S. Ct. foreign insurance that, It was there authority having Pennsylvania business policy on an insurance there a local resident been sued wholly substituted service outside the state, executed Pennsylvania providing though statute invalid even complied absence of actual or with. it had been implied *3 the service, such service on consent to substituted foreign corporation limited was held to be to causes of arising or other acts out of the business carried on action by corporation in the state where suit was done Simon, Ry. brought. v. 236 Co., Southern U. S. See, also, Liberty 492; v. 255, L. Ed. Nat’l Ins. Co. 115, 35 S. Ct. 59 Modern Trattner, 480, 677; 173 Ark. 292 S. W. Portas v. Corp., 2d 300, 198 Ark. 128 S. W. 360.2 Investment process suggested requirements that It is of due by interpreted service, of law for substituted Supreme have modified since Court, been States United Wayne Ass’n Mc- Mutual v. in decision Old Life they Donough, supra. that have at is no doubt There 1 policy premiums provision making in argues that Plaintiff company in the by deposit or trust United States bank payable at (banks agents through and trust com doing business constituted premiums actually being instance of panies) But no in Arkansas. company shown, therefore paid bank or trust an Arkansas an “doing in Arkansas was not issue in possibility business” the case. 2 by which, distinguished from in others are to These cases service, agent actually appointing corporation the defendant to receive designated on the consented to service to have deemed arising in of residents of this state agent action in favor in causes of being this 294 S. W. American done in state. See business was while states 401; Yockey Co., 810, Expr. v. Ry. H. Rouw Co. v. 694; Equitable 601, Ry. Co., W. 2d 183 Ark. 37 S. F. St. L.-S. Assur. Soc. Scottish Union Life Mann, 751, 75 S. W. 2d 232. The case of v. Hutchins, 533, W. 2d 188 Ark. 66 S. & Nat’l Ins. Co. V. contradictory, light 616, might appear read in the to be must be 360, Corp., 300, 198 Ark. Protas Modern Investment W. of cited above. v.

least been clarified. International Co. Wash Shoe ington, activity 326 U. S. beld it was that a course 310, consisting merely by of the solicitation of business sales “ admittedly men, which was less than the of busi Washington subject in ness”, enabled state to foreign corporation personal. jurisdiction based on constructive service.3 In Ass’n Travelers Health v. Vir ginia, 339 U. S. Ct. decided June 5, theory of the International case was ex Shoe Co. permit Virginia tended juris State to exercise company diction over a Nebraska insurance which was engaged in extensive mail order solicitation of insurance Virginia. major business in difference between the Virginia case and the case now us is that in the Virginia case it was shown evidence that the Nebraska company many years had for soliciting been “member ships” Virginia by mail, that it had about 800 Vir ginia policyholders, investigating and had been claims Virginia servicing policies and otherwise there. The itpon cause of action sued arose out of the Nebraska company’s Virginia. activities conducted The case now before policy us, contrast, involves action on a company issued in California which, as far as we can discover from the had evidence, never solicited busi mail ness, or otherwise, nor done other acts in *4 Arkansas at the time this ’cause of action arose. The impose' effort upon to thus local a non- appearing, non-consenting foreign corporation which has engaged activity in no in a Arkansas, suit on a cause of action which outside the arose state, cannot be suc cessful. separate

(2) ground upon plaintiff A seeks uphold judgment to below is that the defendant providing theory A statute for service in on Arkansas this enacted, Stats., thereafter Ark. L. Rev. in Act 347 of 27-340. See 3 § many cases, 22-24. There are both in Arkansas and elsewhere, holding upon a state base (less “doing business”) of of action sued act than out of which arises the cause upon. Highway Mfg. Kincannon, J., See Steel & Co. v. 816; Chapman Taylor, 198 Ark. S. W. 2d Chemical Co. v. 820; Bay 222 W. 2d Co., Johns v. State Abrasive Products Supp. (D. Ct., Md.) 89 Fed. subjected general appearance him to entered wliich limitation. court’s Arkansas appearance pleading general from which this sought to Quash is “Motion be discovered headed is Spe- Require Plaintiff Service of Summons and to cifically Allege begins It Matters Thereto Related.” entering with a statement that the defendant “without appears specially . . . quashing for the sole and only purpose and But service of summons.” proceeds plaintiff required allege it then to ask that whether defendant domestic in what state defendant is what unauthorized domiciled, business defendant where the Arkansas, has done and upon insurance contract sued was entered into. Then prayer plaintiff a further follows furnishes that, after quashed the service be for lack of information, jurisdiction under the Fourteenth Amendment in accord- with the ance days information to be furnished. Three thus

later, further- action was taken in the “Supplemental case, defendant filed a Amendment to Motion to Quash Service Summons” which, questions, no new he answered for himself the four questions plaintiff asked of in the first motion, quash. renewed the motion to pleadings

Later filed defendants included an a substituted answer, answer, a motion to make more stipu definite and certain. each of these, and in carefully preserved objec lation of facts, defendant jurisdiction. tions to the We have held that a defendant may, duly making special appearance after objecting jurisdiction, appear juris to the on the with the merits question expressly dictional and retain reserved, right present appeal. the issue of on Sinc Refining lair Co. Bounds, 198 Ark. 149, 127 S. W. 2d 629. *5 position, original

Plaintiff’s is that however, quash, motion to filed as defendant, was so broad it to motion to make more a amounted definite and Searcy Grocery certain which, Wholesale Co. Balts, 209 Ark. itself was general appearance.

We do not think that the motion filed defendant here had the same effect as that filed in the Balts case. The Balts motion was headed “Motion to Make More holding Definite and and in Certain”, that it constituted general appearance pointed J., ont that McHaney, question any way the “motion did hot of purpose the court.” In contrast, the whole of the motion filed jurisdiction question the defendant here was to requests court, and the for additional specifically jurisdic- information were directed tional issue and that issue alone. We hold that these requests for quash information relevant to the motion to for lack juris- did not themselves confer diction. judgment is reversed and the cause is dismissed. (dissenting). J. On the record before Ius, Holt,

think appellant case should be affirmed for the reason that appearance thereby entered recognized its purposes. of the court over it for all Appellant filed “MOTION QUASH TO SERVICE OF AND SUMMONS TO REQUIRE PLAINTIFF TO SPECIFICALLY ALLEGE MATTERS THERETO RELATED.” appellant, alleging this motion, after that it

entering purpose for the quashing sole then require summons, asked the court to appellee allege specifically “Whether the defendant (appellant) foreign corporation, or a domestic etc.” seeking

In thus require the aid of the trial court appellee complaint to amend his and state whether it was a or a domestic it was implied for affirmative relief, purposes. court all

As I construe our our rule is decisions, that when one advantage seeks take jurisdiction, want of he must *6 keep ground out of must object alone and on that first purpose. every for other the court quashing the appellant to liis motion confined

Had ruling and asked for secured alone, of summons service pre- against motion in another him, then court the quash right answered summons, his served any would relief, for affirmative or asked objection as a waiver of such considered not have been upon it. the service Bossinger, 2d 195 Ark. 445, v. 112 W. In Robinson by Judge opinion Prank this court G. Smith, objec language: “After the the rule announced jurisdiction overruled, had been made and tion to the exceptions property an saved and carried into the and agreeing to a continuance under these for swer, attempt is not an to secure affirmative circumstances special appearance. is not inconsistent with and the relief, * * * ¡j£ thg being sued in a that has defendant, court jurisdiction personae, excepts jurisdic not ratione to the appears urges he tion when exception first the the suit, making any other and if the defense, exception compelled judg overruled, he is not to allow go against ment to him default, but thereafter appropriate resort to means of defense, reiterating protest against his- of the thereby creating presumption and without court, exception he has to the of the abandoned.his judge erroneously When a has court. overruled an ex ception jurisdiction, why good to his there is no reason exceptor judge should continue to remind of his every stage proceedings, error at in order to avoid presumption (the acquiesces exceptor) that he a erroneous in the ” ruling.’ Searcy Wholesale Grocer v. Balts, Co. party we held that 620, 192 here, where, reciting solely appearing a motion that it filed the purpose “sought motion but aid of-the require appellee complaint court to to amend the as to ’’ impliedly partnership, whether it was a or a purposes, conceded of the court for all Gladish, Federal Land Bank Louis St. “Broadly 2d 696, stated, W. we said: object part except action on tlie defendant, recognized person,, over his general appearance.’ case as in court, will constitute a ** * 4 C. J. 1333. *7 (‘ < are There numerous cases which the defendant question has been to waive over person by taking step upon some to contest the cause special appearance the merits after his motion on has seeking advantage been overruled. One to take of want every according such case to these must, object ground keep decisions, on that alone. He must out every purpose. goes of court for If he in for purpose incompatible supposition with the that the court power has no on account of defective process upon goes he in and him, submits purposes personal jurisdiction respect all the with objec- himself, and cannot afterwards be heard make tion.’ 2E. 340.” L.C.

Accordingly, think I the ease should be affirmed.

Long v. State. W. 2d Opinion delivered October Rehearing denied November 13, 1950.