108 Tenn. 567 | Tenn. | 1902
This is a suit on a policy of life insurance. It was issued by defendant company
The second and third assignments of error raise the question whether service of process on the Secretary of State was sufficient and gave the Court jurisdiction of defendant company. It is insisted that the Act of 1875, requiring foreign insurance companies doing business in this State to file with Secretary of State a power of attorney constituting said officer attorney in fact, upon whom process against the company might be served, was repealed by the Act of 1895. It is admitted that the only power of attorney ever filed by the defendant company in this State was in March, 1875, under the Act of 1875, authorizing the Secretary of State to accept service. The Act of 1895 expressly repealed the Act of 1875, and provided that the State Treasurer, as ex oficio State Insurance Commissioner, should be provided with a power of attorney by foreign insurance companies doing business in this State. It is insisted by the counsel for the complainant below that the Act of 1875 provided that the power of attorney deposited with the Secretary of State should be irrevocable, and that so long as that said company had any business in this State, and that until a new power of attorney is deposited with the State Treasurer under Act of 1895, service of process may’ be made upon the Secretary of State under the power of attorney executed to said officer under the Act of 1875. It appears that when the
It is well settled that the remedy enters into and forms a material part of the obligation of a contract. Von Hoffman v. Quincy, 71 U. S., 735; Collins v. E. Tenn., Va. & Ga. R. R., 9 Heis., 845. But a change of remedy does not impair the obligation of a contract unless all remedy is taken away. Tennessee v. Sneed, 96 U. S., 69; McAdoo v. Smith, 5 Bax., 695.
It is insisted by counsel for the defendant that a ermedy still exists to sue this company at its home office in Connecticut. But the remedy provided by the Act of 1875 was the right to sue a foreign corporation in the Courts of this State.
It is well settled that the State has a right to exclude all foreign insurance companies from its borders if it see proper to do so, or to admit them on such terms as it may choose, however onerous. State v. Phœnix Ins. Co., 8 Pickle, 431; Paul v. Virginia, 8 Wall., 168; Ducat v. Chicago, 10 Wall., 410; Chicago Ins. Co. v. Needles, 113 U. S., 574; Doyle v. Central Ins. Co., 94 U. S., 535.
Foreign corporations are not citizens within the clauses of the Federal Constitution providing that the citizens of each State shall be entitled to all the privileges and immunities of citizens in the several States. Bank v. Earle, 13 Peters, 538; Mining
So it has been held that the business of a foreign insurance company is not interstate commerce. Paul v. Virginia, 8 Wall., 168; Hooper v. Cal., 155 U. S., 648; 1 Joyce on Ins., Sec. 328.
It has been held that foreign corporations are “persons” within that clause of the Fourteenth Amendment which provides that ‘ ‘ no State shall deny to any person within its jurisdiction the equal protection of the laws,” but this clause does not affect the power of the State to exclude from the State foreign corporations, or to prescribe any condition it may choose for their admission. 13 Am. & Eng. Enc. Law, 846; 119 U. S., 110; 118 U. S., 394; 125 U. S., 181.
Any other construction of this clause would entitle foreign corporations to the same privileges as domestic corporations, and as has been seen it is within power of the State to exclude foreign corporations entirely. 13 Am. & Eng. Enc. Law, 846; 119 U. S., 110. These principles are all well settled. The Act of 1875, Ch. 66, in prescribing the conditions upon which foreign insurance companies should be permitted to enter the State and continue business here provided in Section 12, viz.: “That any such company or corporation desiring to transact any such aforesaid business in this State by any agent or agents, shall file with the Insurance Commissioner a power
The fourth assignment of error, goes to the action of the Court in overruling the demurrer of the defendant, the substance of which was that the complainant could not maintain this suit in his own name as husband and next friend of his child, but that it was necessary for the suit to be brought by an administrator for the wife, and that it was necessary to allege the intestacy of the wife. Complainant’s counsel state in their brief, viz.: “The theory upon which this brief was filed, was that where the policy was made payable to the wife, Annie Sweeney, if living at the time of the death of the insured, otherwise to her children by him; the effect was to confer vested rights upon the wife of the insured, and her children by him, and to place the policy
“Policy a Vested Interest. — A policy and the money to become due under it, belongs, the moment it is issued, to the person or persons named therein as beneficiaries and there is no power in the person procuring the insurance by deed, will or otherwise, to transfer the interest of the persons therein named. Bank of Washington v. Hume, 128 U. S., 132, (32 Law Ed., 171).
“Under a life policy payable to the insured’s wife, should she survive him, otherwise to her children by him, the children take several and transmissible interests immediately upon the delivery of the policy, subject to the contingency of the wife surviving.
“A husband cannot assign a policy taken out by himself and in terms payable to bis wife and children. Gosling v. Caldwell, 1 Lea, 454.
“It is thus shown that Mrs. D’Arcy had a vested interest in the proceeds of this policy upon the death of her mother.
“Policy of Insurance a Chose in Action. —A policy of insurance, both at common law and by force of the Act of 1801, is a chose in action. Scobey v. Waters, 10 Lea, 561; Mutual Life Ins. Co. v. Hamilton, 5 Sneed, 269; Handworker v. Deirmeyer, 12 Pickle, 627.”
It is insisted on behalf of the company that James D’Arcy has no right to maintain this suit, for the reason that he never reduced the policy to possession. The right to the proceeds of the policy was a chose in action, which, of course, could not be reduced to possession until after the death of the insured, James Sweeney, which occured in July, 1901. The policy was the mere evidence of the .chose in action, and, of course, its possession remained in the hands of the insured. The present action was brought by James D’Arcy in his capacity as husband, and was an act on his part to reduce said chose in action to possession. ' It is difficult to see how he could have reduced it to possession during the life of his wife, for, until the insured, James Sweeney, died, there was no right of action in any
This is not the rule in this State. In Rice v. McReynolds, 8 Lea, 37, this Court said, viz.: “We take it to be too clear for argument, or need of authority, that the husband is entitled to receive and reduce to possession during coverture all choses in action, whether in the form of notes, debts, or legacies, belonging to the wife at the time of their marriage, or accruing to her afterwards. If he fails to reduce them to possession during their cov-erture, and survives the wife, then his administrator, or personal representative, is entitled to them, and may sue for and. recover them.”
This rule is based upon the proposition that, upon the death of the wife, the husband becomes the absolute owner of her choses in action, jure mariti. We so decided in Handworker v. Diermeyer, 96 Tenn., 627. In that case we held that two life policies payable to the wife, upon her death became the absolute property of her husband. In that case
This principle was recognized in this State in Hamrico v. Laird, 10 Yer., 222. In that case the husband sued, as administrator of his wife, to recover certain negroes, the separate property of his wife. In that case it was said : “It can scarcely now be made a question whether - the husband, having administered upon the wife’s estate, is entitled to retain the separate property and choses in action of the wife, after the payment of her debts, without distribution among her next of kin. He is not accurately described when called, as is sometimes done, her next of kin; nór does he derive his title to claim her personal property from the statutes of distribution, but he claims it, and is entitled, as husband, and, in right of the marriage, as owner.” The concluding paragraph of that opinion is, viz.: “In truth, the complainant, although he states himself as administrator, yet he sues upon his title as husband and owner of the property.”
In Prewett v. Bunch, 17 Pickle, 736, we held, viz.: “It is well settled that, if the wife dies before the reduction to possession, her chose in
In the latter case the Court said that, upon no sound principle could a distinction be taken between the husband’s right or the right of his personal representative to the wife’s choses in action. It is true that the husband takes subject to the payment of any debts that the wife may owe or any equity or right that may be chargeable against it, but, with this condition, he has the clear right to bring the suit in his own name for the recovery of the chose.
The case of Railroad v. Johnson,, 13 Pickle, 674, was a suit by the husband, as administrator, to recover damages for the unlawful killing of his wife. Following the rule laid down in Trafford, Administrator, v. Adams Express Co., 8 Lea, 96, it was held that “the surviving husband was jure mariti, and, to the exclusion of the next kin, entitled to the damages” recoverable in such a case. It was further said in that case: “The recovery for a personal injury to a wife, which results in death, will inure to the benefit of the husband, under the statutory provisions discussed, and that he is entitled to this recovery under the common law rule of jure mariti But, in the course of the opinion, the following language was used, to wit: “To meet another objection of plaintiff in error to the form of this action, it may be said that the surviving husband, as such, could not have maintained this suit, but it
This last remark was obiter, and is not authoritative in the present case.
In conclusion, it is only necessary to add that the minor, Alexander D’Arcy, took no interest in the policy, since his mother was the sole beneficiary of its proceeds, after the death of her mother, Mrs. Annie Sweeney. The insured, James Sweeney, had no authority to collect the cash surrender value of the policy in 1894, since his only daughter, Mrs. D’Arcy, as sole beneficiary, had a vested interest therein, which could not be affected by such a settlement.
It results that the decree of the Chancellor overruling the demurrer is affirmed, and cause remanded for further proceedings.