Universal Life Insurance v. Bachus

51 Md. 28 | Md. | 1879

Miller, J.,

delivered the opinion of the Court.

It seems to have been the purpose of the defendant in this suit to set up the defence that the Court of Common Pleas had no jurisdiction over the case or cause of action, under that clause of section 211 of the Act of 1868, eh. 471, which declares that suits against foreign corporations exercising franchises in this State may be brought in any of the Courts of this State, 1st, “by a resident of this State for any cause of action,” 2nd, “and by a plaintiff not a resident of this State when the cause of action has arisen, or the subject of the action shall be situated in this State.” This clause has been thoroughly considered and construed in Myer’s Case, 40 Md., 595, and Sidney Norris & Co. vs. The Royal Canadian Ins. Co. Garn. of Foley, 49 Md., 366. In these cases it was held, that this statutory provision operates as a grant to our Courts of jurisdiction over certain suits against foreign corporations, not otherwise compelled to submit to the jurisdiction of any Court of this State, and hence where the defendant corporation is such as is described, and the plaintiff is a non-resident and the contract on which the suit is instituted, is made and the subject of it situated in another State, no Court of this State has jurisdiction. It was also decided that this objection could be raised as well after as before a plea to the merits. But in the record before us we do not perceive that the objection has been properly raised at all.

1st. It is clearly not presented by the demurrer to the declaration, for there is nothing in that which shows that the defendant is a foreign corporation or that the plaintiff is a non-resident. The account filed with the declaration forms no part of it, and besides the fact that the affidavit of the plaintiff thereto was made before a notary public in the city of Washington does not prove, and hardly tends to prove she was a resident of that city and not a resident of Maryland. There was therefore no error in overruling this demurrer.

2nd. It is not raised by the pleas. These are that the defendant, 1st, was not indebted as alleged. 2nd, that it did not promise as alleged. 3rd, that the alleged policy of insurance is not its deed. 4th, non est factum. 5th, that it did not violate any of its covenants. 6th, non infregit convenfionem, and 7th, “it pleads the general issue to the declaration of the plaintiff.” Issue was joined upon the first and second, and to the others the plaintiff demurred. The declaration is in assumpsit upon an unsealed insurance policy, and to sustain action it is plain the third, fourth, fifth and sixth pleas have no application. The seventh, if good in form, is merely a repetition of the first and second. The Court committed no error in sustaining this demurrer.

3rd. The refusal of the Court to grant a continuance of the case upon the defendant’s application was a matter wholly within its discretion and is not a subject of review on appeal. Miller vs. Miller, 41 Md., 623. If the restraining order of the New York Court was in force at the time, and it was desired to have this Court determine whether that order was effective to prevent a prosecution of the present action during its continuance, the question should have been raised by a plea or in some other mode than by an application for a continuance of the cause.

4th. At the trial a single exception was taken, and that was simply to the admissibility in evidence of the policy sued on and described in the declaration. The policy itself is not' incorporated in the exception, but appears in the record following the exception as the policy therein referred to. We shall not stop to inquire whether this so makes it part of the exception that we can consider it in reviewing the Court’s ruling as to its admissibility, but will assume that it does. It is a life insurance policy and by it the Universal Life Insurance Company, in consideration of a certain premium paid and to he annually paid by the assured, August and Anna Bachus, agrees to pay to the survivor of them at the Company’s office in the city of New York, the sum of $5000, in thirty days after due-notice and satisfactory proof “ of the death of either of the said August and Anna Bachus, of Washington, in the County of Washington, District of Columbia.” It is signed by the President and Secretary of the Company and purports to have been delivered on the 7th of May, 1875. Now it may be inferred from the face of the instrument that the defendant was a New York company or corporation, and that at the time it was issued the assured were residents of the District of Columbia. But there is no proof, as there was in the case of Sidney Norris & Co. vs. The Royal Canadian Ins. Co., Garn. of Foley, that it was delivered to the assured in Washington by an agent of the Company there, and that the contract of insurance was there made, or that it was not delivered and the contract made by an agent of the Conpany in Baltimore, having his office in that city. But more than this, there is no proof, as there was in that case, that the plaintiff continued to reside in Washington, and was not a resident of Maryland at the time the suit was instituted. By suing a foreign corporation in a Maryland Court on this policy, the plaintiff asserted a right to do so upon the ground either that she was a resident of this State at the time, or that the suit was on a Maryland contract. In the absence then of all proof to the contrary such as we have mentioned, and the policy corresponding with that described in the declaration, we are clearly of opinion the Court was right in admitting it in evidence.

[Decided 6th March, 1879.]

These are the only questions the record presents, and finding no error in the Court’s action as to any of them, the judgment must be affirmed.

Judgment affirmed.