London Guarantee & Accident Co. v. Woelfle

• Decision Date: 20 April 1936
• Docket Number: No. 10386.,10386.
• Citation: 83 F.2d 325
• Parties: LONDON GUARANTEE & ACCIDENT CO., Limited, v. WOELFLE.
• Court: U.S. Court of Appeals — Eighth Circuit

83 F.2d 325 (1936)

LONDON GUARANTEE & ACCIDENT CO., Limited, v. WOELFLE.^*

No. 10386.

Circuit Court of Appeals, Eighth Circuit.

April 20, 1936.

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COPYRIGHT MATERIAL OMITTED

James C. Jones, Jr., of St. Louis, Mo. (James C. Jones, Lon O. Hocker, Frank Y. Gladney, and Sullivan, Reeder & Finley, all of St. Louis, Mo., on the brief), for appellant.

J. L. London, of St. Louis, Mo. (John S. Leahy, Lambert E. Walther, and Leahy, Saunders & Walther, all of St. Louis, Mo., on the brief), for appellee.

Before STONE, SANBORN, and THOMAS, Circuit Judges.

SANBORN, Circuit Judge.

Mrs. Woelfle, the appellee, as plaintiff, brought this action at law upon two policies of accident insurance issued by the London Guarantee & Accident Company of London, England, to her husband, Dr. James E. Woelfle, of Cairo, Ill., who died September 9, 1932. The case was tried to a jury, which returned a verdict for the plaintiff. From the judgment entered thereon, the insurer has appealed. The parties will be referred to as in the court below.

Errors are assigned with respect to:

1. The jurisdiction of the court.

2. Rulings upon evidence.

3. The sufficiency of the evidence to support the verdict.

4. The argument of the plaintiff's counsel to the jury.

There are certain facts which are not in dispute. The policies in suit were in force at the time of the insured's death. Each provided insurance against "bodily injuries effected within the period of this policy through accidental means, directly and independently of all other causes." In case of total disability from accident, policy No. DN-6021 provided for a weekly indemnity, and provided also that if death resulted within 90 days after the accident, the principal sum of $15,000 and, in addition thereto, the weekly indemnity specified in the policy for the period between the date of the accident and the date of death, should be paid. Policy No. AL-27999 was for the principal sum of $22,500, which was payable in case the insured died as the result of an accident. It also provided for a weekly indemnity for total disability caused by accident. The $15,000 policy had also a provision for weekly indemnity for disability caused by disease; the $22,500 policy had no such provision. The plaintiff, at the time this action was commenced, was the owner of these policies, both of which, at the time of the death of the insured, were payable to his estate. At the time of his death, the insured was 60 years of age. He had lived in Cairo, Ill., for about 25 years, was actively engaged in the practice of his profession, and up to a few days prior to his death appeared to be in good health and spirits. On September 5, 1932, the insured played nine holes of golf with an old friend, Louis H. Block. After the game he was not in as good condition and spirits as before, and shortly thereafter gave evidence of being in pain. The following day he went to his office, but showed signs of suffering. On September 7th he was attended by Dr. Rendleman, a friend, who treated him for influenza and kept him in bed. Dr. Rendleman saw him again on September 8th. About 8:30 p. m. on September 9th, the insured died. Dr. Rendleman certified the cause of death as angina pectoris. An autopsy, performed some months after death, disclosed that the immediate cause of death was a rupture of the aorta. The insured's estate was probated in Illinois, and by order of the county court of Alexander county, Ill., the policies in suit were assigned to the plaintiff, who was the residuary legatee. Proofs of death were furnished to the defendant stating that the insured died as a result of a fall while playing golf on September 5, 1932. The defendant denied liability for the death. It did, however, make payment of the weekly indemnity for total disability of the insured for the three days prior to his death.

On June 23, 1933, the plaintiff moved to St. Louis, Mo., and took up her residence there. On August 7, 1933, she filed a petition against the defendant in the court below alleging ownership of the policies, and that the assured came to his death on September 9, 1932, as the direct result of an accidental fall, directly and independently of all other causes. On the same day a summons was issued, and it was served on August 9, 1933, upon the Superintendent of the Insurance Department of Missouri. The defendant on August 26, 1933, filed a motion to set aside the return of service by the marshal on the ground that the policies were issued in Illinois, that the insured resided in Illinois when the policies were issued and when he died, that they were payable to his estate which was administered in Illinois by an Illinois executor, that the plaintiff was not a bona fide resident of Missouri, and that the superintendent had no authority to accept service of summons in Missouri.

An alias summons was issued and served on November 13, 1933, in St. Louis, Mo., by delivering a copy thereof and of the petition to Louis L. Roth, a licensed agent of the defendant. On November 28, 1933, the defendant moved to set aside the return of service of the alias summons on the ground that the defendant was a corporation organized under the laws of Great Britain duly licensed to transact the business of insurance in the state of Missouri, and had, pursuant to section 5894 of Missouri Rev.St.1929 (Mo.St.Ann. § 5894, p. 4495), appointed the Superintendent of the Insurance Department of Missouri its agent for the acceptance of process on its behalf; that the method prescribed by the statutes of Missouri for service of process in actions instituted against foreign insurance companies was exclusive; and that the superintendent was therefore the sole, exclusive, and only agent of the defendant in Missouri upon whom service could lawfully be made.

The court below overruled both motions to set aside the returns of service. Thereupon the defendant filed its answer, wherein it denied every allegation of the plaintiff's petition.

Upon the trial the issues of fact were: (1) Did the insured on September 5, 1932, sustain a fall? (2) If he did, was the fall, directly and independently of all other causes, the cause of his death on September 9th? The court below was of the opinion that, under the evidence, these issues of fact were for the jury, and denied the defendant's motion for a directed verdict.

The Jurisdiction of the Court.

In asserting that the service of the original summons was ineffectual to confer jurisdiction, defendant relies on State ex rel. American Cent. Life Ins. Co. v. Landwehr, 318 Mo. 181, 300 S.W. 294. There the policy was written in Kansas by an Indiana company licensed in Missouri, the insured was at all times a resident of Kansas, and the plaintiff at the time the suit was instituted was a resident and citizen of Kansas. The suit was therefore brought by a resident of Kansas upon a Kansas contract which had matured while the insured was residing in Kansas. The Supreme Court of Missouri held that the laws of Missouri did not authorize the Superintendent of the Insurance Department of Missouri to accept service of process under the circumstances. It said, however, in referring to the statutory provision that service upon the superintendent should "be deemed personal service upon such company, so long as it shall have any policies or liabilities outstanding in this state": "Policies outstanding in this state necessarily include policies written outside of this state which are owned and held by residents of this state at the time suit is instituted thereon." Page 297 of 300 S.W. The court also said that, since "the contract of insurance sued on by Mrs. Row the beneficiary was not made in Missouri and is not outstanding in Missouri, service of process in her suit upon such contract of insurance, made upon the superintendent of the insurance department, cannot be sustained." Page 298 of 300 S.W.

Apparently the reason the policy of Mrs. Row was not "outstanding in Missouri" was that it was not a policy owned and held by a resident of Missouri at the time suit was instituted.

In our case the suit was brought by a resident of Missouri upon Illinois policies. At the time the suit was instituted the plaintiff owned and held these policies. Therefore, under the quoted language of the opinion in the Landwehr Case, these were policies outstanding in Missouri, and service of summons on the superintendent was valid service. Even though the portion of that opinion upon which this conclusion is based be considered obiter, the conclusion still has ample support in the decisions of the Missouri Supreme Court because the opinions in Gold Issue Mining & Milling Company v. Pennsylvania Fire Ins. Co., 267 Mo. 524, 184 S.W. 999, and State ex rel. Pacific Mutual Life Ins. Co. v. Grimm, 239 Mo. 135, 143 S.W. 483, which sustain the validity of such service as was made in this case, notwithstanding the plaintiff in each of those cases was a nonresident when suit was brought, were overruled by the Supreme Court of Missouri in the Landwehr Case only in so far as they affected the exact question presented in that case. Saunders et al. v. London Assur. Corporation (C.C.A.8) 76 F.(2d) 926. Until the Supreme Court of Missouri has held that in a suit brought by a Missouri resident against a foreign insurance company licensed in Missouri upon a policy which was issued and which matured in another state, service of process may not be accepted by the Superintendent of Insurance of Missouri, this court should not be asked to invalidate such service.

Whether the court below acquired jurisdiction also by virtue of the service of the alias summons upon its agent, because the defendant was an alien corporation which was suable in any federal district in which it might be found regardless of state statutes, it is not necessary for us to determine; but see In re Hohorst, 150 U.S. 653, 662, 14 S.Ct. 221, 37 L.Ed. 1211; Galveston, H. & S. A. R. Co. v....