Arizona Mut. Auto Ins. Co. v. Bisbee Auto Co.

• Decision Date: 12 May 1921
• Docket Number: Civil 1846
• Citation: 22 Ariz. 376,197 P. 980
• Parties: ARIZONA MUTUAL AUTO INSURANCE COMPANY, a Corporation, Appellant, v. BISBEE AUTO COMPANY, Appellee
• Court: Arizona Supreme Court

197 P. 980

22 Ariz. 376

ARIZONA MUTUAL AUTO INSURANCE COMPANY, a Corporation, Appellant, v. BISBEE AUTO COMPANY, Appellee

Civil No. 1846

Supreme Court of Arizona

May 12, 1921

APPEAL from a judgment of the Superior Court of the County of Cochise. A. G. McAlister, Judge. Affirmed.

Mr. R E. Sloan and Mr. C. R. Holton, for Appellant.

Messrs Flanigan & Murry, for Appellee.

OPINION

O'CONNOR, Superior Judge.

This is an action brought by the Bisbee Auto Company and William R Cole against the Arizona Mutual Auto Insurance Company, a corporation, under the terms of an insurance policy covering damages to an automobile described in plaintiff's complaint.

The complaint sets forth the terms of the insurance policy, and alleges that an auto was stolen and, while in the possession of the person stealing the same, was wrecked; that under a clause of said policy, insuring the plaintiff against loss by theft, the defendant was liable for the damages sustained by the said auto while in the possession of the alleged thief.

Appellant's brief recites that the complaint and summons, according to the return made by the sheriff of the county of Cochise, were served upon one Bruce Perley on the thirteenth day of June, 1919, and that on the twenty-sixth day of July, 1919, default was taken against the defendant, and on the same day counsel for plaintiff appeared before Honorable A. G. McAlister, Judge of the superior court of Graham county, Arizona, sitting as a judge of the superior court of Cochise county, and obtained an order for judgment in the full amount prayed for in plaintiff's complaint.

The judgment was not entered until the eleventh day of August, 1919, and in the interim between the date of taking the default and the date of entering the judgment, the defendant filed its motion to vacate and set aside the default and judgment, basing said motion on the affidavit of C. R. Holton, one of the attorneys for appellant, attempting to show that the purported service of summons and complaint was not a valid service upon the defendant corporation, and that no valid service of summons had been made upon the defendant corporation, as prescribed by law; that an answer had been prepared and served by mail upon plaintiff's attorneys on the twenty-sixth day of July, the day default was entered; and that Honorable Richard E. Sloan, counsel for the defendant corporation, was absent from his office during the month of July, up to about the 25th of the month, and that the answer was mailed to plaintiff's attorneys on the twenty-sixth day of July, 1919; that, together with the aforesaid answer, an affidavit of one Carl H. Anderson was also filed, for the purpose of attempting to show that the said Bruce Perley was not an agent of the company upon whom service of summons could lawfully be made.

On the twenty-second day of January, 1920, said motion was by the court denied, and from the judgment and order denying the motion to vacate and set aside the default and judgment, this appeal is prosecuted.

In appellant's second assignment of error, we find the following language:

". . . The court had no jurisdiction of the defendant because of the fact that the purported service of summons and complaint was not made upon the person who was an agent of defendant company upon whom legal service could be had."

Volume 1, Words and Phrases Judicially Defined, page 263, defines an "agent" as follows:

"An 'agent' is one who represents another, called the 'principal,' in dealings with third persons. Such representation is called agency."

Paragraph 442, Revised Statutes of Arizona of 1913, provides that --

"In suits against any incorporated company . . . the summons may be served . . . upon the local agent representing such company or association, in the county in which the suit is brought."

22 Cyc., page 1427, says:

"An insurance agent is one employed by an insurance company to solicit risks and effect insurance."

And further:

A person may become authorized to bind the company as its agent not only by formal appointment as such agent, but also by being authorized by implication to act on behalf of the company in relation to its business; and in general, persons who, with the knowledge and assent of the company, act for it in soliciting or procuring or contracting for insurance, are held to be agents without formal appointment.

"It is well understood that a corporation can act only through agents, it being an artificial person, and that any person who acts for a corporation to any extent whatever by authority is its agent in whatever he does by its authority." Densel v. Atlanta Mercantile Co., 17 Idaho 432, 106 P. 3.

In article 1223, Revised Statutes of Texas of 1895, it is provided upon whom citation must be served in the case of foreign corporations, among those mentioned being the local agent.

By "local agent," as used in the articles mentioned, must be meant a person who is representing the corporation in the promotion of the business for which it was incorporated, etc., and further:

"The law evidently contemplates service on a person employed in forwarding the particular line of business for which the corporation was organized, . . ." etc. Bay City Iron Works v. Reeves Co., 43 Tex. Civ. App. 254, 95 S.W. 739, 740.

A perusal of the affidavit of Carl H. Anderson reveals the following language:

"Carl H. Anderson, being first duly sworn, deposes and says: That he is the secretary and treasurer and a member of the board of directors of the Arizona Mutual Auto Insurance Company, a corporation; and that said . . . corporation is organized under and by virtue of the laws of the state of Arizona; that said corporation has complied with the provisions of the laws of the state of Arizona relative to the appointment of a bona fide resident of said state as its agent ; that said corporation has appointed your affiant, Carl H. Anderson, as such agent and has filed said appointment of such agent in the office of the corporation commission, etc.

"Your affiant further states that he is the general agent of the said corporation, Arizona Mutual Auto Insurance Company,...