155 S.W.2d 687 | Ark. | 1941
Petitioner insurance company asks that we prohibit the Logan circuit court from entertaining jurisdiction in respect of a cause wherein C. N. Fringos, a policyholder, seeks judgment under a provision allowing compensation for sickness. The writ should be issued, it is said, because Fringos, a resident of Texarkana, Arkansas, result of pulmonary tuberculosis, and was at that time taken to State Sanatorium at Booneville.
Suit was filed July 16. Summons was served on the insurance commissioner at Little Rock. Another summons was served on A. O. Barlow, described as agent for Mutual Benefit Health Accident Association in Logan county. The return recites that Barlow ". . . is in charge of the agency of said defendant in the Southern district of Logan county."
Coupled with the allegation that Fringos was a citizen and resident of Texarkana was the assertion that the Logan circuit court was without jurisdiction of the subject-matter or the person of the defendant.
There was attached to the motion to dismiss a list containing the names of thirty persons who from 1937 to June 22, 1941, had been sent to the sanatorium by order of the Miller county court under authority of 12616 and 12617 of Pope's Digest.1 The statute referred to make provision for a charge against the county of half the maintenance cost; and, as emphasized by petitioner, the term "patients [of the] county" is used.2 A certificate of the Miller county judge, attesting that Fringos was a resident of that county, is dated June 30, 1941, more than two months after the patient was sent to the sanatorium.
Metropolitan Life Insurance Co. v. Baker,
Section 7715, Pope's Digest, allows the beneficiary under a policy of accident insurance to sue in the county where the insured resides or in the county where the accident occurs. Jurisdiction of the defendant is acquired by service upon an agent in any county in the state, or upon the insurance commissioner. The statute refers to "accident insurance," but does not mention disability occasioned by sickness. In Continental Casualty Co. v. Toler,
Section 7676 of Pope's Digest makes all provisions of laws applicable to life, fire, marine, inland, lightning, or tornado companies apply to all insurance companies transacting any kind of business within the state. Section 1369 of Pope's Digest, which appears under "Civil Procedure" at page 609, provides how service may be had on all foreign and domestic corporations that maintain a branch office or place of business. *1131
The holding in Grovey v. Washington National Insurance Co.,3
In Scottish Union Nat'l Ins. Co. v. Hutchins,
It is our further view that there is no prima facie showing that Fringos did not intend to change his residence. While it is true the county judge certified the insured as a resident of Miller county in April, it is equally true that on March 26, preceding, Act 266 of 1941 relieved counties of the obligation of paying maintenance accounts for tuberculous patients, and the certificate of the judge sheds no lights on Fringos' intentions as to residence after leaving Texarkana. His wife moved with their child to Fort Smith and secured employment. A great deal of Fringos' time is spent in bed, under a doctor's directions, and if recovery is effected at all, the process may require months or years. There is nothing in the record, other than the fact that he formerly lived at Texarkana, to indicate that he regards Miller county as his home. His intention in that respect would govern. That man has an absolute right to change place of abode for any reason was decided in McGill v. Miller,
In the complaint there is the allegation that ". . . plaintiff is now residing in the Southern district of Logan county."
In view of the circumstances compelling plaintiff's removal from Texarkana; the fact that his wife has been employed at Fort Smith; and the indeterminate nature of plaintiff's tenure at State Sanatorium, the court, on the face of the record, was not without jurisdiction. If at trial it should be shown by appropriate proof that plaintiff's claimed residence in Logan county is without merit, the trial judge will no doubt take notice of such evidence and be guided accordingly.
Our holding now is that a proper showing for prohibition has not been made.
Writ denied.