90 Ky. 364 | Ky. Ct. App. | 1890
delivered the opinion of the court.
Tlxe only question to be considered is, whether the Allen Circuit Court had jurisdiction to render the judgment now in question.
The action is upon a policy of insurance issued by the appellant, and which is filed as an exhibit with the petition. The judgment was rendered by default. The statements of the petition are, therefore, to be taken as true. It avers that the company’s chief office is in Louisville, Jefferson county, Kentucky, and that it, “through its duly and regularly authorized agent in Allen county, Kentucky, issued to the
Summons issued to Jefferson county only, and was there duly served upon the chief' officer of the company. It is insisted that as no summons was served in Allen county upon any officer or agent of the company, that the Allen Circuit Court, while having jurisdiction of the subject-matter of the action, had no jurisdiction of the person of the company, and no power, therefore, to render a judgment.
Aside from any Code provision, the action would be a transitory one, because it is based upon simple contract, and a service upon the defendant in the county where the venue is laid would be necessary to give jurisdiction. Section 71 of our Civil Code, however, provides: “Excepting the actions mentioned in sections 62 to 66, both inclusive, and in sections 70 and 75 (the excluded sections do not relate to actions like this one), an action against an incorporated bank or insurance company may be brought in the county in which its principal office or place of business is situated; or, if it arise out of a transaction with an agent of such corporation it may be brought in the county in which such transaction took place. ”
It is unnecessary to decide whether or not this section limits the right to bring an action like this one to the county in which the principal office or place of business of the insurance company is located, or if it arise out of a transaction with its agent to the county in which the transaction took place, or to it and the county in which its principal office is located. This question is not now before us. The
While the section, as a whole, is not as clear in meaning, perhaps, as a different wording might have rendered it, yet the first clause of it was, in our opinion, intended, where the Code localized an action, or gave the claimant the right to do so, to authorize the service of the summons in such a case upon the chief officer or agent of the company wherever found in the State.
It is true the policy recites: “In witness whereof, 'the said Kentucky Mutual Security Fund Company have, by their president and secretary, signed and delivered this contract at Louisville, Ky. ; ” but the framers of the Code knew, and this court knows, that insurance companies send out their agents to the country to solicit insurance; the “transaction” is had there with the agent, while the policies are signed at the home office. This being so, the fact that the policy shows it was signed in Louisville can not be allowed to control the averment in the petition that the company, “through its duly and regularly authorized agent, in Allen county, Kentucky, issued to the said L. D. Logan a certificate of membership;” otherwise, that clause above italicised of section 71 of the Code would be rendered nugatory. This would compel the bringing of all actions upon policies of insurance in the county of the home office of the .company.
Judgment affirmed.