Gude v. Dakota Fire & Marine Insurance

7 S.D. 644 | S.D. | 1895

CORSON, P. J.

This was an action npo'n a judgment rendered by default in the state of Minnesota. The complaint is in the usual form. The defendant answered, and after denying the allegations of the complaint, except the due incorporation of the defendant under the laws of this state, alleged, in substance, that, when the proceedings in the said action were commenced and the judgment rendered, the defendant was not served with process in said action, and had no notice of the pendency of the same, and that it had no agent in the state of Minnesota upon whom summons could be served. The case was tried by the court without a jury, and the findings of fact, conclusions of law, and judgment were in favor of the plaintiff. A motion for a new trial was made and denied, and the defendant appeals.

The appellant, an insurance company incorporated under the laws of this state, and having its principal place of business at Mitchell, in this state, issued a policy of insurance to the plaintiffs, upon an elevator and personal property therein, situated in the city of Duluth, state of Minnesota, insuring them against loss by fire. The property having been destroyed by fire, the respondents Gude Bros., instituted an action in the district court of the county of St. Louis, in the state of Minnesota, upon the policy so issued, and recovered the judgment sued upon in this action. No answer was filed or served by defendant in that action, and there was no appearance by any one on its behalf. Upon the trial of this action the plaintiff offered in evidence a duly certified copy of the judgment roll filed in the district court of St. Louis county, in the state of Minnesota, which was objected to on the following grounds: “Defendant objects to the introduction of the papers named and offered in evidence, for the reasons: First, that it does not appear from the complaint upon which said judgment was based that the defendant was at tbe time said action was commenced doing business in tbe state of Minnesota; second, it nowhere appears in said complaint that tbe said defendant was at any time doing business in tbe state of Minnesota; third, it further appears in said judgment roll that no personal service was made upon said defendant, or upon any of tbe officers thereof, or upon any manager or agent thereof within the state of Minnesota; fourth, that it further appears from the complaint in the action upon which said judgment was obtained that the said defendant was a foreign corporation.” The objection was overruled, and the defendant excepted, and the ruling of the court is assigned as error. This ruling of the court, in our • opinion, was correct. The plaintiffs allege in their complaint that the district court in which said judgment was rendered was a court of general jurisdiction, and that the “summons, together with a copy of the complaint in said action, was * * * duly and personally served on the above named defendant in said action.” These allegations in the complaint were sufficient to admit the certified copy of the judgment roll in evidence. The ultimate facts that the court in which the judgment was rendered was a court of general jurisdiction, and that the summons and a copy of the complaint were duly and personally served upon the defendant, were all that it was necessary to allege in the complaint. The probative facts requisite to prove these ultimate facts were matters of evidence, and were not required to be set out in the complaint. The recitals in the judgment and accompanying affidavits were prima facie evidence, at least, of the facts giving the court jurisdiction. D’Arcy v. Ketchum, 11 How. 165; Insurance Co. v. French, 18 How. 404; St. Clair v. Cox, 106 U. S. 350, 1 Sup. Ct. 354.

The learned circuit court made and filed his findings of fact in the case at bar, the material parts of which are as follows: “(3) That on the 9th day of September, 1891, the said defendant * * * was, and for some time'prior thereto had been, transacting insurance business in the state of Minnesota; that on the 9th day of September, 1891, in consideration of the payment by plaintiffs to defendant of the premium of $30, the said defendant duly made, executed, and delivered to plaintiff its certain policy of insurance No. 19,423, upon the property of the plaintiff, situated in said Duluth, in said state of Minnesota; that said insurance was solicited of the plaintiffs, for and on behalf of said defendant, * * * by William O. Tillotson, acting as the agent of and for and on behalf of said defendant insurance company at said Duluth, and who delivered the policy of insurance to the plaintiffs, and who collected and received the premium therefor, and transmitted the same to the defendant at said Mitchell, in the state of South Dakota, and such premium was received and accepted by said defendant. And * * * which said summons, together with the plaintiff’s complaint in said action, was thereafter, and on the 7th day of March, 1892. at the city of Duluth, in said St. Louis county and state of Minnesota, duly and personally served upon the above named defendant in said action, the Dakota Fire & Marine Insurance Company, by delivering to and leaving with the said William O. Tillotson, being the same person mentioned in finding No, 3, true and correct copies of said summons and complaint.” The learned counsel for the appellant contend that these findings are not supported by the evidence; but, as we fail to discover in the record any specifications of the particulars in which such evidence is claimed to be insufficient to support the findings, we are compelled to disregard this assignment of error, and hold that the findings are conclusive upon this court. Assuming, then, that the findings of the court are correct, we shall not discuss the evidence.

The counsel for the appellant contend that the service upon said Tillotson was not such a service as gave that court jurisdiction to render a judgment binding upon the courts of this state: (1) Because it does not affirmatively appear from the record in that action, nor in the findings of the court in the case at bar, that the defendant was doing business in that state at the time this action was commenced; and (2) because the service- made was not upon an agent of the defendant authorized to do any act binding upon the defendant, other than soliciting insurance in its behalf, and that service upon such an agent is not sufficient to give tbe court jurisdiction. The counsel for tbe respondents contends that, as the service made as found by the court conformed strictly with, the requirements of the laws of Minnesota, the judgment is valid in that state, and that it is therefore entitled to have given to it the same faith and credit in this state that is given to it in the state where rendered. We are inclined to the opinion' that the proposition of respondents’ counsel is correct when applied to foreign corporations doing business in a state. The law of Minnesota relating to service in such case is as follows: “Service of summons in any action against an insurance company not incorporated under and by virtue of the laws of this state shall, in addition to the mode now prescribed by law, be valid and legal, and of the same force and effect as personal service on a private individual, if made by delivering a copy of the summons and complaint, or the summons alone, to any person who shall solicit insurance on behalf of any such insurance corporation, or property owner, or who transmits an application for insurance, to or from any such insurance corporation, or who makes any contract for insurance, or collects or receives any premium for insurance, or who adjusts or settles a loss, or pays the same for such insurance corporation, or in any manner aids or assists in doing either.” Bev. St. 1894, Sec. 3158.

While a mere soliciting agent of an insurance company may not possess the power to bind such company by his acts not strictly within the scope of his authority, yet it is competent for a state to provide that service upon such soliciting agent of a foreign insurance company shall be held and taken as due service upon the company. This is upon the theory “that a corporation of one state cannot o business in another state without the latter’s consent, express or implied, and that consent may be accompanied with such conditions as it may deem proper to impose. ” St. Clair v. Cox, 106 U. S. 350, 1 Sup. Ct. 354. In that case the court further says: “If a state permits a foreign corporation to do business within her limits, and at the same time provides that, in suits against it for business there done, process shall be served upon its agents, the provision is to be deemed a condition of the permission; and corporations that subsequently do business in the state are to be deemed to assent to such condition as fully as though they had specially authorized their agents to receive service of the process.” In the earlier case of Paul v. Virginia, 8 Wall. 168, the same court uses the following language: “The corporation, being the mere creation of local law, can have no legal existence beyond the limits of the sovereignty where created. As said by this court in Bank of Augusta, v. Earle, ‘It must dwell in the place of its creation, and cannot migrate to another sovereignty.’ The recognition of its existence even by other states, and the enforcement of its contracts made therein, depend purely upon the comity of those states — a comity which is never, extended where the existence of the corporation or the exercise of its powers is prejudicial to their interests or repugnant to their policy. Having no absolute right of recognition in other states, but depending for recognition and the enforcement of its contracts upon their assent, it follows; as a matter of course, that such assent may be granted upon such terms and conditions as those states may think proper to impose.” In State v. United States Mut. Acc. Ass’n., 67 Wis. 624, 31 N. W. 229, and in State v. Northwestern E. & L. Ass’n, 62 Wis. 176, 22 N. W. 135, the supreme court of Wisconsin held a similar law in Wisconsin valid, and service made in pursuance of its requirements binding upon the defendant. In the former case, Cassoday, J., has written a very exhaustive and instructive opinion. In Insurance Co. v. Thompson, 40 N. E. 488, decided by the supreme court of Illinois in April, 1895, that court holds that a judgment rendered by the district court of Wisconsin, in a case where the service was made in substantially, if not identically, the same manner as the one we are considering, was a valid judgment, and entitled to have given to it the same faith and credit given to it in Wisconsin. As both the court of appeals and the supreme court arrived at the same conclusion, the decision is entitled to great consideration. The fact that the insurance in the case at bar was upon fixed property described in tbe policy as situated in Duluth, in tbe state of Minnesota, fully apprised tbe defendant tliat tbe risk wbiclr it assumed to carry was in tbat state; and if it did not desire to contract insurance in tbat state subject to tbe conditions imposed by its laws it should not have received tbe premium and issued the policy to citizens of that state. If it choose to accept tbe risk, it did so upon tbe terms prescribed by tbe laws of that state. By assuming tbe risk within tbe state of Minnesota, it involuntarily submitted itself to tbe laws of tbat state. The recitals in tbe record show, we think, and tbe learned circuit judge so found, tbat tbe service was in strict conformity with the laws of tbat state. This being so, tbe judgment is entitled to have the same credit and faith given to it in this state which it has in tbe state where rendered. It need scarcely be said tbat a different rule applies to corporations from tbat applied to individuals. “A corporation, being an artificial being, can act only through agents, and only through them can be reached, and process must therefore be served upon them.” St. Clair v. Cox, supra. Hence, it being-competent for a state, as a condition upon which it will permit corporations to do business within its jurisdiction, to prescribe who shall, for the purposes of serving process upon such corporation, represent it in the state, service upon such person must ordinarily be deemed sufficient.

The respective counsel have cited and discussed numerous authorities in their briefs, but, in the view we take of the case, a review of these authorities is not necessary in this opinion. We, however, give a few of those cited bearing upon the questions discussed, in addition to those heretofore referred to: Pennoyer v. Neff, 95 U. S. 714; Hart v. Sansom, 110 U. S. 151, 3 Sup. Ct. 586; Henning v. Iusurance C., 28 Fed. 440; Colorado Iron Works v. Sierra Grande Min. Co., (Colo. Sup.) 25 Pac. 325; Southern Ins. Co., of New Orleans v. Wolverton Hardware Co. (Tex. Sup.) 19 S. W. 615; Railroad Co. v. Cottrell, (Va.) 3 S. E. 123; Pope v. Manufacturing Co., 87 N. Y. 137. The judgment of the court below is affirmed

Kellam, J., took no part in the decision.