Prussian National Insurance v. Eisenhardt

153 Mich. 198 | Mich. | 1908

Carpenter, J.

(after stating the facts). 1. The first question for our consideration arises from the contention of appellant that the declaration is defective because it contains no averment that plaintiff is a corporation. It is to be observed that the plaintiff is described as the ‘ ‘ Prussian National Insurance Company of Stettin, Germany.”

In Bennington Iron Co. v. Rutherford, 18 N. J. Law, 105, the plaintiffs, by the name of the Bennington Iron Company, declared against the defendant. The defendant demurred upon the ground “that it does not appear on the bill that the plaintiffs are a corporation, or have any right to maintain this suit against the defendant.” The court, through Nevius, J., said:

“ In the present case, the name of the plaintiffs is distinctly stated, and the law will presume it to be truly stated till the contrary appear, and cannot without a tax upon common sense, infer it to be the name of an individual or natural person. Nor will it presume it to be the name of an unincorporated company or partnership, who can sue only in their individual names; but of an incorporated company who have a right to sue in their incorporated name.”

See, also, Dutchess Cotton Manufactory v. Davis, 14 Johns. (N. Y.) 238; Henderson & Nashville B. Co. v. Leavell, 16 B. Mon. (Ky.) 358; Legnard v. Crane Co., 54 Ill. App. 149; Mississippi, etc., B. Co. v. Gaster, 20 Ark. 455; Farmers’ & Millers’ Bank v. Sawyer, 7 Wis. 379. We are of the opinion that the first ground of demurrer was properly overruled.

2. Should the declaration have contained an averment that said plaintiff had a license from the commissioner of insurance of Michigan to carry on its business in Michigan ? The defendant relies on section 10467, 3 Comp. Laws, and sections 5123, 5133, 2 Comp. Laws. Sections 5123 and 5133 prescribe conditions under which foreign insurance companies can do business in this State.

Section 10467 reads:

“ But when, by the laws of this State, any act is forbidden to be done by any corporation, or by any association of individuals, without express authority by law, and such act shall have been done by a foreign corporation, it shall not be authorized to maintain any action founded upon such act, or upon any liability or obligation, express or implied, arising out of, or made or entered into in consideration of such act.”

Assuming these sections to be applicable, the question presented by the demurrer is this: Must the declaration aver a compliance with their provisions ? This question has not heretofore arisen in this court, but it has arisen in the highest courts of many of - our sister States, and it is held by the great weight of authority that no such averment need be contained in the declaration or complaint, and that compliance with the law will be presumed. See Sprague v. Lumber Co., 106 Ind. 242; Nickels v. Saving Ass’n, 93 Ya. 380; Langworthy v. Carding, 74 Minn. 325; Parlin & Orendorff Co. v. Boatman, 84 Mo.App. 67; Charles Boome Parmele Co. v. Haas, 171 N. Y. 579; Northern Assurance Co. v. Borgelt, 67 Neb. 282; American Ins. Co. v. Smith, 73 Mo. 368; Lehigh Valley Coal Co. v. Gilmore, 93 Minn. 432. We are therefore of the opinion that the second ground of demurrer was properly overruled.

3. The third and fourth causes of demurrer may be considered together. To better understand the point there made, we quote from appellant’s brief:

“Defendants are sued as joint obligors, and joint principals (though from the declaration ,it appears that one was a surety but not which one) without averring any joint condition to the obligation or any joint breach of it, though legally the judgment must go against both defendants or neither. Plaintiff having elected to bring an action against these defendants as joint obligors and principals in a bond, it devolves upon him to show a joint condition to the bond, and a joint breach of it.”

This argument proceeds upon a misconception of the cause of action stated in the declaration. According to that declaration, the failure of appellant Eisenhardt to pay the plaintiff the moneys collected by him constituted a j oint cause of action. In other words, plaintiff has averred a “joint condition in the bond and a joint breach of it.” Moreover, it does appear from the declaration that appellant Eisenhardt was the principal in said bond and defendant Carpenter the surety therein.

Appellant also seeks to make the point that, in overruling the demurrer, the trial court used the term “order ” whereas he should have used the term “adjudged.” Assuming, but not deciding, that this point is open for review, we dispose of it by saying that it is entirely lacking in merit. The order complained of has precisely the same effect as though it contained the word “adjudged.” Judgments may not be reversed for such technicalities, 3 Comp. Laws, § 10272, subd. 12.

The judgment is affirmed.

Blair, Montgomery, Ostrander, and Moore, JJ., concurred.