The State ex rel. Pacific Mutual Life Insurance Company v. Grimm

• Decision Date: 27 January 1912
• Parties: THE STATE ex rel. PACIFIC MUTUAL LIFE INSURANCE COMPANY v. J. HUGO GRIMM, Judge
• Court: Missouri Supreme Court

143 S.W. 483

239 Mo. 135

THE STATE ex rel. PACIFIC MUTUAL LIFE INSURANCE COMPANY v. J. HUGO GRIMM, Judge

Supreme Court of Missouri

January 27, 1912

Writ denied.

Jones Jones, Hocker & Davis, Fred Herrington, Robertson & Robertson and Seddon & Holland for relators; George H. Mason, Holt Wheeler & Sidley and M. P. Cornelius of counsel.

(1) The cirucit court has no jurisdiction, because: (a) the service of process was insufficient; and (b) the courts of Missouri have no jurisdiction over foreign insurance companies in causes of action arising out of business done in other States with citizens of those States. Sec. 7042, R. S. 1909; Insurance Co. v. French, 18 How. (U.S.) 404; St Clair v. Cox, 106 U.S. 350; Life Ass'n v McDonough, 204 U.S. 8; Hunter v. Ins. Co., 218 U.S. 586; Stewart v. Harmon, 8 F. 190; Berry v. Indemnity Co., 46 F. 439; Plate Glass Co. v. Ins. Co., 55 F. 27; Sawyer v. Ins. Co., 46 Vt. 697; Middough v. Railroad, 51 Mo. 520; Baile v. Ins. Co., 68 Mo. 617. (2) The jurisdiction of the circuit court has been invoked by plaintiff in fraud of relators and for purposes of oppression. The maintenance of the actions in the circuit court will be an abuse of jurisdiction. (a) The laws of Illinois alone govern the construction and enforcement of the insurance contracts. Thompson v. Insurance Co., 169 Mo. 12; McGeehan v. Insurance Co., 131 Mo.App. 420. (b) Plaintiff brought the Missouri actions for the purpose of oppressing relators and to prevent them from making their defense. They cannot compel the giving of testimony in Illinois. Puterbaugh v. Smith, 131 Ill. 199; McIntyre v. People, 227 Ill. 26; Martin v. People, 77 Ill.App. 311. (c) Jurisdiction should never be taken where justice cannot be done and where parties will be denied due process of law. Mfg. Co. v. Du Bois, 165 Mass. 117; Pietraroia v. R. & F. Co., 197 N.Y. 434; Bank v. Knox, 47 Mo. 333. (3) If relators are compelled to submit themselves to the jurisdiction of the circuit court they will be denied due process of law contrary to the Fourteenth Amendment to the Constitution of the United States. Cases under point one; County of San Mateo v. Railroad, 13 F. 722; In re Rosser, 101 F. 567; Moss v. Whitzell, 108 Fed 579. (4) There has been no waiver of relators' rights to question and resist the attempted jurisdiction of the circuit court. Newcomb v. Railroad, 182 Mo. 707; Thomasson v. Ins. Co., 217 Mo. 485. There have been no general appearances and no pleas to the merits in the actions in the circuit court. Thomasson v. Ins. Co., 169 Mo. 12. (5) Prohibition is the proper remedy. (a) Want of jurisdiction appears on the record. Railroad v. Wear, 135 Mo. 230; State ex rel. v. Hirzel, 137 Mo. 435; State ex rel. v. Oliver, 163 Mo. 679. (b) Extraordinary circumstances exist indicating the necessity for the writ. State ex rel. v. Eby, 170 Mo. 497; State ex rel. v. Fort, 107 Mo.App. 328. (c) Appeal or writ of error will be totally inadequate. State ex rel. v. Fort, 107 Mo.App. 337, State ex rel. v. Elkin, 130 Mo. 90. (d) Great hardships, oppression and injustice will result if the writ is not made absolute, whereas no hardship will result if jurisdiction is denied and the writ is made permanent. (6) The Superintendent of the Insurance Department of the State of Missouri is not the agent of a foreign insurance company doing business in this State to receive service of process in a cause of action arising outside of the State, under a policy issued and delivered outside of the State of Missouri and issued and delivered in the State where the cause of action accrued, and when the plaintiff is a non-resident of the State of Missouri. Sec. 7042, R. S. 1909; Sec. 7991, R. S. 1899; Sec. 5912, R. S. 1889; Laws 1885, p. 183; Sec. 6013, R. S. 1879; Laws 1874, sec. 4, p. 74; Latimer v. Railroad, 43 Mo. 105; 3 Cook on Corporations, sec. 758; 19 Cyc., sec. 8, 1340; Smith v. Ins. Co., 14 Allen (Mass.) 336; Sawyer v. Ins. Co., 46 Vt. 697; Mill Co. v. Swede Iron Co., 32 N. J. L. 15; Car Co. v. Harrison, 122 Ala. 149; Bawknight v. Ins. Co., 55 Ga. 194; 13 Am. & Eng. Ency. Law (2 Ed.), 897; Morawetz on Private Corporations (3 Ed.), sec. 981, note 3; Fairfax, etc., Co. v. Chambers, 75 Md. 604; Robinson v. Nav. Co., 112 N.Y. 315; Railroad v. Carr, 76 Ala. 388; Railway v. Wayne Circuit Judge, 102 Mich. 248; Strom v. Railroad, 81 Minn. 346; Rodgers v. Mutual, etc., Ass'n, 17 S.C. 406; Peters v. Neely, 84 Tenn. 275; Swarts v. Grain and Stock Co., 166 F. 338; Mutual Reserve Fund L. Ass'n v. Boyer, 50 L.R.A. (Kans.) 538; Hunter v. Mutual Reserve Life Ins. Co., 218 U.S. 573; Rorer on Interstate Law (2 Ed.), 32-35; St. Clair v. Cox, 106 U.S. 350; Mutual Reserve Fund Life Ass'n v. Phelps, 190 U.S. 147; 6 Commentaries on the Law of Corp. (Thompson), sec. 8003. (7) As both the plaintiffs and defendants in the court below were nonresidents of the State of Missouri, and as the cause of action involved in the suits in question arose entirely in a foreign jurisdiction, the attempted service upon defendants by serving the Superintendent of Insurance was not valid. R. S. 1909, sec. 7042; Sawyer v. Ins. Co., 46 Vt. 697; Rehm v. Insurance Co., 25 N.E. 173; Insurance Co. v. McDonald, 204 U.S. 8; Stewart v. Harmon, 8 F. 190; Berry v. Indemnity Co., 46 F. 439; Glass Co. v. Ins. Co., 55 F. 27; Ins. Co. v. French, 18 How. 404. (8) Where a cause of action arises in a foreign State between parties who are not citizens of the State of Missouri, the courts of the latter State can assume jurisdiction of the cause, but they do so only as a matter of comity, and will not assume such jurisdiction where the effect of so doing would be to work an oppression or a fraud upon the defendant. Bank v. Knox, 47 Mo. 333; Christian v. Williams, 35 Mo.App. 297; Fears v. Riley, 149 Mo. 149; Holker v. Hennessy, 141 Mo. 527; Byler v. Jones, 79 Mo. 261; Vastine v. Bast, 41 Mo. 493; Wonderly v. Lafayette County, 150 Mo. 635; Dunlap v. Cody, 35 Ia. 260; Bryant v. McLure, 44 Mo.App. 553; Derby v. Donohue, 206 Mo. 699; Bishop v. Seal, 87 Mo.App. 256; Dickson v. Kempensky, 96 Mo. 259; Mfg. Co. v. DuBois, 165 Mass. 117; Bank v. Rindge, 154 Mass. 203; Post v. Railroad, 144 Mass. 321; 2 Cyc. 638; Morris v. Railroad, 78 Tex. 17; Burdick v. Freeman, 120 N.Y. 420; Dewitt v. Buchanan, 4 Barb. (N.Y.) 31; Cooley on Constitutional Limitations, p. 187; Wright v. Cradlebaugh, 3 Nev. 341; 2 Kent's Comm. 13; In re Rosser, 101 F. 567; County of San Mateo v. Railroad, 13 F. 722; Moss v. Whitzell, 108 F. 579, 582. (9) Under the circumstances of this case prohibition is the proper remedy: State ex rel. v. Bradley, 193 Mo. 33; State ex rel. v. Eby, 170; State ex rel. v. Reynolds, 209 Mo. 161; State ex rel. v. Aloe, 152 Mo. 467.

Judson & Green, Runnels, Burry & Johnstone and Barclay, Flauntleroy & Cullen for respondents.

(1) Plaintiff's right to sue defendant in Missouri. Barrel Steamship Co. v. Kane, 170 U.S. 100; Johnson v. Ins. Co., 123 Mass. 432; Mohr v. Ins Companies, 12 F. 474. (2) Service of process. Sec. 7042, R. S. 1909; Johnson v. Ins. Co., 132 Mass. 432; Deatrick v. Ins. Co., 107 Va. 602; Reeves v. Railroad, 121 Ga. 602. All the cases referred to in relator's brief's miss the point involved in the case at bar. Our statute, provides for service of process upon the Insurance Commissioner, not only in all proceedings that may be instituted against such company in the courts of this State, but also in all suits that may be instituted against such company "in any court of the United States in this State." Nearly all suits instituted against insurance companies in the Federal courts of this State are instituted by non-residents of the State, and the Legislature evidently intended to authorize such suits by non-residents who might sue in the Federal courts upon polices issued outside the State as well as upon those issued within it. The right to obtain service under the provisions of our Missouri statute is not limited to suits upon policies of insurance which were issued in this State. The statute expressly says in all proceedings that may be instituted against such company. (3) Under Section 2 of Art. 4 of the U. S. Constitution, the plaintiff below has an absolute right to maintain this action in the courts of Missouri. Deatrick v. Ins. Co., 107 Va. 602; Cole v. Cunningham, 133 U.S. 113. (4) The joinder in the motion of these allegations of matters of defense or abatement which do not appear in the record proper, and which unquestionably go to the right of plaintiff to maintain any action on these policies in this State, no matter how the summons was served, would be a waiver of the right to have the return quashed, even if such right had ever existed. Newcomb v. Railroad, 182 Mo. 687; Wicecarver v. Ins. Co., 137 Mo.App. 247; Thomasson v. Ins. Co., 217 Mo. 485; Mohr v. Railroad, 140 F. 921. (5) The plea of another action pending in a foreign jurisdiction is not good as a defense, even when regularly pleaded in an answer. Trimble v. Railroad, 180 Mo. 583; Schmidt v. Foster, 130 Iowa 347; Brown v. Allebach, 166 F. 488. (6) Even if it were a defense the pendency of the other suit could not be taken advantage of by such a motion as we have here. Unless it appears from the face of the petition the objection of another action pending must be made by appearance and answer. R. S. 1909, secs. 1800, 1804; Warder v. Henry, 117 Mo. 541; Thompson v. Holden, 117 Mo. 130; State ex rel. v. Dougherty, 45 Mo. 294; Lord v. Aultman, 75 Ind. 162; Ryan v. Mills, 129 Mich. 170; Crease v. Babcock, 10 Metcalf (Mass.) 525; Gardner v. Kiel, 182 Pa. St. 194; Fish v. Young, 127 Wis. 149. (7) If this pleading of relator be treated as merely a motion to dismiss the petition for the reasons therein alleged, it is insufficient. It is fundamental in pleading that such motions to dismiss must be...