Pervangher v. Union Casualty & Surety Co.

81 Miss. 32 | Miss. | 1902

Terral, J.,

delivered the opinion of the court.

The legislature, by chap. 65 of annotated code (1892), has authorized foreign insuraxice companies to take risks and transact business of insurance within this state upon certain conditions prescribed in said chapter, one of which conditions is that such insurance company shall have an agent within this state upon whom service of process on behalf of said company may be had, § 2323; and in default thereof that the person who solicits insurance for a company, or takes or transmits an application for insurance, etc., * * * shall be held to be the agent of the company for which the act is done or the risk is taken, as to all the duties and liabilities imposed by law, § 2327. When the appellee company issued the policy here sued on, it had an agent, J. K. Moore, through whom it issued this policy in compliance with the law of the state upon the subject. When this suit was brought, Moore had been discharged by the company, and it had no agent at all in this state, and upon the trial claims that service of process upon Moore was ineffectual for any purpose. The contention of the appellee is not to be supported. Having come into the state under conditions prescribed by law and issued the policy sued on by its agent, Moore, it cannot withdraw the agency of Moore and leave itself without any agent in this regard. To do so would Be a fraud upon appellant, and fraud is never tolerated. The appellee’s agent, Moore, issued and delivered the policy sued on, and by the express provision of § 2327 he is to be held the agent of the company for all the duties imposed by law — one of which is to be served with process in a suit relating to such policy. The appellee could not withdraw his agency so far as to receive service for the company, and its effort in that direction is a nullity. Sadler v. Mobile Ins. Co., 60 Miss., 391.

It results that the service of process upon <T. K. Moore, the agent of appellee, who issued the policy in this case was a proper service upon the company itself, wherefore the judgment is reversed and the ease remanded.

Reversed and remanded.