55 F. 27 | U.S. Circuit Court for the District of Indiana | 1892
(after stating the facts as above orally.) The facts in this case are essentially the same as in the case of Ehrman v. Insurance Co., 1 Fed. Rep. 471, and the statute of Indiana, under which the summons against the defendant was served upon the auditor of state, is similar to the statute of Arkansas construed in that case. We quote from the decision, (page 476:)
“The citizen insuring his property in this state is not required to search the files of the auditor’s office for the purpose of ascertaining whether the company has filed the required stipulation, and otherwise complied with the statute. The receipt of the premium, and the execution and delivery of tire policy, by the company, are equivalent to an assertion by the company thax it has complied with the requirements of the statute to entitle it to do business in the state; and, as between the assured and the company, the latter is estopped, upon the soundest principles of law and morals, to say that it has not done so.”
In the more recent case of Berry v. Indemnity Co., 46 Fed. Rep. 439, the principle which governs the question is thus stated:
“The laws referred to were enacted for the benefit of the state, and the protection of policy holders. By failing to comply with them, the defendant and its agents incurred the prescribed penalties; but such failure does not*29 affect the validity of its policies, or in any manner operate to the prejudice of policy holders. By the fact of doing business in the state, it asserts a compliance with the laws of the state, and after enjoying all the benefits of that business, and receiving the money of the assured, it will not be heard to say that it never submitted ‘io the jurisdiction of the state.’ It can reap no advantage from its own wrong.”
That the stipulation was not in fact filed with the auditor is therefore of no consequence, if the company has done those things which imposed upon it the obligation and duty to file it. The law deduces Hie agreement on the part of the company to answer in the courts of the state, on service made upon the auditor, from the fact of its doing business in the state; and the presumption, from that fact, of assent to service in the mode prescribed by the statute, is conclusive. Xo averment or evidence to the effect that it had nor, intended to come under the law of the state is admissible to defeat the jurisdiction. The reason of this rule is that the obligation to file the stipulation is imposed for the protection of the citizen dealing with the company; and when, by its own. act, its obligation to lile íhe siipulation is perfect, as'between the company and'the citizen, it will not be permitted to relieve itself from a liability which the written stipulation would have imposed, by^ pleading its own failure, whether negligent or willful, to'comply with the statute. In such cases the law conclusively presumes that to have' been done which ought to have been done. The maxim, that no man shall take advantage of Ms own wrong is as applicable to corporations as to natural persons, and to agreements of the kind under consideration as to any other. The defendant must answer to the merits of the action.
