Sawyer v. North American Life Insurance

46 Vt. 697 | Vt. | 1874

The opinion of the court was delivered by

Wheeler, J.

In the writ in this case, the defendant is set up as “ a corporation established by law, located in the city, county, and state of New York;” the plaintiff as “ of Winona, in the state of Minnesota.” The cause of action set forth in the declaration, is for the breach of a contract made between the defendant on one part, and the plaintiff and a person then her husband on the other, the plaintiff and her husband being then of Milwaukie, in the state of Wisconsin, the contract being in writing and dated at New York, and containing a clause that it was not to be binding until countersigned by a person named as being of Fitchburg, Massachusetts. This contract therefore was not made, nor was it to be performed, in this state. The substance of the contract was, that upon the death of the plaintiff or her husband, the defendant would pay to the survivor a certain sum of money. The declaration alleges that the husband died at Brattleboro, in this state, and that the cause of action accrued to 'the plaintiff upon his death. It does not appear to be alleged that at that time he was a resident, and therefore a citizen, of this state. But if that fact were alleged, it is not alleged that the plaintiff was then a resident or a citizen of this state; and although the cause of action accrued to her by his death, it accrued to her where she was, and not where he died, unless she was domiciled where he died. From these facts and considerations, it appears that the cause of action on which this suit is brought, is not within this state ; and also, that neither of the parties . is situated or resident here. ‘When there is property of a defendant in a suit, situated in this state, although neither defendant nor plaintiff is here so that personal service can be made, a suit may be brought here and maintained for the purpose of obtaining a judgment of the courts here upon the cause of action, and a sequestration of the property in satisfaction of the judgment. The law provides how service may be made in such a case, without making personal service, and authorizes proceeding to judgment upon such constructive service.; but such a judgment is of no force anywhere only so far as it operates upon the property sequestered ; and without some property within the jurisdiction to be affected by it, the court would not proceed to judgment at all. In this case the service was not by attaching property at all, hence there is no ground for maintaining the suit for the purpose of reaching any property here.

After describing the defendant corporation, as before stated, as of New York, the writ states, “ Of which'Sumner Frost, of Derby, in the county of Orleans, is general agent and attorney ” ; and the service made of the writ was by delivering a true copy, <fec., to “ Sumner Frost, agent and attorney ” of the defendant. This agent and attorney has not appeared at all in the suit, and the important question in the case is, whether, upon this service, merely, the defendant can be compelled to have this cause of action adjudicated upon and determined. Upon this question, it is to be borne in mind that there is nothing whatever in the case to show what authority this agent and attorney has from the defendant, more than the description of him by the words “ general agent and attorney,” before mentioned. Generally, service upon an agent and attorney is of no force to give jurisdiction over a principal. If service upon this agent is of any force for that purpose, it must be because of the provisions of the statutes relating to service of process upon foreign insurance companies. The provisions of those statutes do not apply to all foreign insurance companies, but only to those making contracts of insurance within this state. Gen. Sts. 556, §§ 5 to 9. There is nothing in all this case that has any tendency to show that this corporation ever made, or is now making, any contracts of insurance in this state. A foreign corporation, whether an insurance company, or of any other kind, may find it necessary to transact business in other states, and if so, must do it by agents, and may, doubtless, do it by what are known as general agents. The statute does not provide for service upon such agents, but only upon those appointed in obedience to the statutes, by companies making contracts of insurance; and it does not appear that this agent was appointed at all in obedience to the statute, any more than it appears that this defendant needed to have an agent here in order to comply with the statute. Hence, as the case stands, the service appears to be upon a general agent and attorney, without appearing to be upon an agent appointed under the statute at all, unless it is to be assumed, that because the defendant is an insurance company, any agent it may have in the state is such statutory agent. But assuming, as has been assumed in argument, that this agent was appointed in obedience to the statute, with all the authority that the statute provides should be conferred, there is still the question as to what cases the statutes were intended to reach. A statute is to be construed with reference to the old law, the mischief, and the remedy. When this statute was passed, the old law permitted the agents of any insurance company, foreign as well as domestic, to make contracts of insurance in this state, under which, causes of action would accrue to the people of the state within the jurisdiction of the state courts. The mischief was, that the jurisdiction of the state courts over these causes of action, would be unavailing, except upon voluntary appearance, for want of power in the courts to compel appearance. The remedy provided was, the requiring of any foreign insurance company making such contract, to keep an agent in the state, on whom service could be made. This would be a full remedy for all that mischief, without requiring such companies to keep an agent here on whom any process for any purpose could be served. There could be no advantage obtained for the people of the state, by providing means to give the courts of the state jurisdiction over causes of action that accrued out of the state in favor of persons not citizens of the state, against a corporation existing out of the state, and it is not to be presumed that the legislature intended to accomplish that purpose, unless that is the necessary result of the enactment. It is more reasonable to suppose that the intention was, to provide a method for obtaining jurisdiction over a defendant to a cause of action thát the courts had jurisdiction of before, than that it was to provide means for obtaining jurisdiction of a cause of action where none was had before, and of the parties also, by this compulsory appointment of an agent. This seems to be the construction of a similar statute, made in Smith v. Mut. Life Ins. Co. of New Yorh, 14 Allen, 336, and in Camden Rolling Mill Co. v. Swede Iron Co. 3 Vroom (N. J.), 15. In this case, the court had no jurisdiction over the cause of action, nor over the plaintiff, otherwise than as she invoked it, nor over the defendant, otherwise than by service upon this statutory agent, assuming him to be such. This agent, for the reasons stated,- is considered not to have been required by the statute, nor appointed by the corporation, for the purposes of such service of process in favor of a party not a resident, on a cause of action which did not accrue here, and which the court has no jurisdiction over; but only for the service of process upon' non-resident corporations, to enforce causes of action that the court already had jurisdiction of, which was unavailing for want of jurisdiction of the defendant.

This decision is not at all in conflict with that made in Day v. Essex Co. Bank, 13 Vt. 97. In that case, the cause of action accrued in this state, and the corporation had appeared fully, and answered to the action by attorneys of the court where it was pending.

Judgment affirmed.