256 F. 268 | D. Neb. | 1916
An objection to jurisdiction over the defendant is based on the service of summons in this case. The de
The plaintiff shows that there was service in this case upon a policy holder, who had presented a blank application to another person, and solicited him to fill out the application, had received $2 from such person for the initial payment, and had transmitted the application and money to the insurance company, who accepted it and issued a policy thereon to the third person.
The defendant shows that it is a mutual assessment company, organized under the laws of Illinois, and having its headquarters there, and accepting as policy holders only traveling salesmen, and it has but one method of doing business in procuring new members. That method is to have the applicant mail to the company his written application, with membership fee of $2, and then having the board of directors act upon the application. No solicitors or agents, in the common meaning of the word, are employed. In this case the company had sent out a circular letter to the policy holders, in September, 1914, relating to a railway mileage question pending before the Interstate Commerce Commission, and one of them came into the hands of William Ray a policy holder in Nebraska. The following words were a part of this letter:
“Won’t you kindly use the inclosed application to get one new member for the association ? It will help us out on the extra expense of getting out this letter, which is done Cor the good of all traveling men. $2 will pay his membership fee and carry his insurance to January 15th.”
William Ray solicited John Ray to become a member, and John Ray filled out the blank application and paid William Ray $2, and this was sent to the company at Chicago, in an envelope which contained nothing else. The company accepted of John Ray the application, and issued him a policy, and thereafter dealt with him as a policy holder.
No other act of William Ray appears, upon which is based a claim of his agency for the company. The date of the application by John Ray was in October, 1914, and the policy was issued to him in the same month.
The date of service of summons in this case was in October, 1915, and the return shows it was served on “William W. Ray, agent of the said Illinois Commercial Men’s Association, no president, secretary, or other chief officer found in said county.”
John Ray and William Ray treated the transaction as closed when the policy was issued, and the proofs show that the company did not know that William Ray had acted in soliciting, obtaining, or remitting the application of John Ray. Certainly William Ray could not be said to continue to be the agent of the company, because of that transaction, so as to be amenable to service of summons a year thereafter, in a case arising upon an entirely different policy of insurance issued four years before. As his agency, if it had existed, had ceased, service of summons upon him was not service on the company. Campbell Printing Press & Manufacturing Co. v. Marder, Luse & Co., 50 Neb. 283, 69 N. W. 774, 61 Am. St. Rep. 573; St. Clair v. Cox, 106 U. S. 350, 1 Sup. Ct. 354, 27 L. Ed. 222; Continental Wall-Paper Co. v. Lewis Voight & Sons Co. (C. C.) 106 Fed. 550; 19 Encyc. Pl. & Pr. 658. The objections to jurisdiction will be sustained.