Bankers' Life Ins. Co. v. Robbins

• Decision Date: 09 December 1897
• Parties: BANKERS' LIFE INS. CO. v. ROBBINS ET AL.
• Court: Nebraska Supreme Court

53 Neb. 44

73 N.W. 269

BANKERS' LIFE INS. CO.

v.ROBBINS ET AL.

Supreme Court of Nebraska.

Dec. 9, 1897.

Syllabus by the Court.

1. A cause of action, or some part thereof, on a life insurance policy, arises, within the meaning of section 55 of the Code of Civil Procedure, in the county where the insured died.

2. A life insurance company, created under the laws of this state, is situated, within the meaning of section 55 of the Code of Civil Procedure, in any county in the state in which it maintains an agent or servant engaged in transacting the business for which it exists.

3. Whether the relation of principal and agent exists between two parties is generally a question of fact, and, while it is not necessary to prove an express contract between the parties to establish such relation, either that must be done, or the conduct of the parties must be such that the relation may be inferred therefrom.

4. Section 8, c. 16, Comp. St., declares what conduct on the part of a person shall be conclusive evidence of the fact that he is an agent of a foreign insurance company. The section has no application to an agent of an insurance company created under the laws of this state.

5. The fact that a bank collects and remits to a domestic insurance company premiums due from its policy holders, but transacts, and is authorized to transact, no other business for the insurance company, is not evidence which will, of itself, sustain a finding that such bank is the agent of such insurance company, within the meaning of section 74 of the Code of Civil Procedure.

6. A party against whom a judgment has been rendered by default, which judgment is void for want of jurisdiction over the person of the defendant, is not entitled to an injunction to restrain the enforcement of such judgment unless he makes it appear both from his pleadings and proof (1) that he has a meritorious defense to the cause of action on which the judgment is based, (2) that he has no adequate remedy at law, and (3) that his plight is in no wise attributable to his own neglect.

7. An adequate remedy at law within said rule is one that is as practical and efficient to the ends of justice and its prompt administration as the remedy in equity.

8. The remedies at law available to the appellant, the adequacy of such remedies, and whether the plight of appellant was due to his own negligence, discussed in the opinion.

Appeal from district court, Lancaster county; Strode, Judge.

Suit by the Bankers' Life Insurance Company against A. M. Robbins and others. Judgment for defendants, and plaintiff appeals. Reversed.

Harwood, Ames & Pettis, for appellant.

A. M. Robbins and Reese & Gilkeson, for appellees.

RAGAN, C.

The Bankers' Life Insurance Company is a corporation created and subsisting under and by virtue of the laws of this state, having its domicile and principal place of transacting its business in the city of Lincoln, in Lancaster county. In October, 1891, it insured the life of John C. Morrow in the sum of $5,000, payable, on his death, to his wife, Anna B. Morrow. Morrow at this time was a resident of Valley county, Neb., in which county he subsequently died. In the district court of said county Mrs. Morrow brought suit on said insurance policy and against the insurance company, and a summons was issued for the insurance company, and delivered to the sheriff of said county for service. This summons said sheriff duly returned, reciting that he had served it upon the insurance company in said Valley county by delivering a true copy thereof to one J. L. McDonough, the agent of said insurance company in said county, and that he had served it upon the insurance company in said Valley county by delivering a true copy of said summons to J. A. Patton, the cashier of the Ord State Bank, situate in said county, the chief officer of said bank not being found in the county, and said bank being then and there the agent of said insurance company. The insurance company made no appearance whatever to this action. In November, 1892, the district court of said Valley county rendered a judgment by default in favor of Mrs. Morrow and against the insurance company on said insurance policy. Subsequently Mrs. Morrow died testate, and A. L. Robbins was appointed her executor; and, subsequent to this, Robbins caused an execution to be issued on said judgment and placed in the hands of the sheriff of Lancaster county, and the insurance company thereupon instituted in the district court of said Lancaster county this action against the sheriff of said county and Robbins, the executor, to enjoin the collection of said execution and the enforcement of said judgment on the ground that the district court of Valley county had no jurisdiction over the person of the insurance company, and that the judgment was therefore absolutely void. The trial in the district court of Lancaster county resulted in a dismissal of the insurance company's action, and it appeals.

Since the insured died in Valley county, the cause of action upon the insurance policy, or some part thereof, at least, arose in that county, within the meaning of section 55 of the Code of Civil Procedure (Insurance Co. v. Pyers, 36 Ohio St. 544;Bruil v. Association [Wis.] 39 N. W. 529); and since the insurance company was a corporation created by the laws of this state, if it was situate in said Valley county, within the meaning of said section 55 of the Code, then the action of Mrs. Morrow on the insurance policy was properly brought in Valley county; and the insurance company was situate in Valley county, within the meaning of said section 55 of the Code, if at that time it had and maintained in said county a place of business, and an agent or servant engaged in conducting and carrying on the business for which it existed. Egg Co. v. Snyder, 39 Neb. 632, 58 N. W. 149. And if McDonough or the State Bank of Ord, upon whom the summons was served, or either of them, was then and there the agent or servant of the insurance company in and for said Valley county, engaged in and conducting and carrying on the business of the insurance company, the summons was properly served upon such agent or agents, the court had jurisdiction of the insurance company, and its judgment was not void.

2. The evidence in the record shows without dispute that at the time this summons was served upon McDonough he was not, and had never been, the agent of the insurance company. He had never taken an insurance application for it, nor had he ever claimed to be the insurance company's agent. At the time Morrow's policy of insurance was applied for, an agent of the insurance company was in Valley county, and McDonough introduced this agent to a number of parties in that county, and the insurance company desired McDonough to act as its agent in that county, but he never agreed to so act, and he was never appointed by the company, nor did he ever do anything for it from which his agency could possibly be inferred. Whether the relation of principal and agent exists between two parties is generally a question of fact; and, while it is not necessary to prove an express contract between the parties to establish such relation, either that must be done, or the conduct of the parties must be such that such relation may be inferred therefrom. Here the record discloses affirmatively that no express contract existed between these parties that would create such a relation, and there is a total want of evidence from which such a relation might be inferred. The district court of Valley county then obtained no jurisdiction over the insurance company by the service of this summons upon McDonough.

3. This brings us to the contention of the appellee that the Ord State Bank was the agent of the insurance company. At all times after Morrow's insurance policy was issued the insurance company would transmit to the Ord State Bank the calls or assessments for the premiums due for its policy holders living in Valley county, at the same time notifying the policy holder that he could pay his premium or call to the Ord State Bank, and that that institution would give him a receipt for such call or premium. The insurance company, when transmitting these calls for premiums to the bank, would forward to it receipts for the policy holder for the premium, instructing the bank that when the premium was paid, and it delivered the receipts, to countersign the same. Numerous policy holders--among them, Morrow himself--paid their premiums to this bank under this arrangement between it and the insurance company, and the bank accounted to the insurance company for the premiums thus received. This is the only business or service performed by the bank for the insurance company, and the contention of the appellee is that the conduct of the insurance company and the bank in the matter of the collection and remittance of the premiums is evidence which establishes that the relation of principal and agent existed between them, and that the bank was an agent of the insurance company upon whom service of summons might be had within the meaning of the statute of this state. In support of its contention that the bank was such agent of the insurance company the appellee contends that, inasmuch as the bank was collecting and remitting the premiums on calls which the insurance company forwarded its policy holders, section 8, c. 16, Comp. St., made the bank an agent of the insurance company upon whom service of summons might be served. This chapter 16, Comp. St., is entitled “Corporations,” and the first 14 sections of it deal with insurance companies. The first section provides that every insurance company incorporated under the laws of this state shall make specific statements to the auditor of public accounts, which statements shall contain a list of its assets and liabilities, the names of its officers and agents, and their place of residence, etc. The second section makes it the duty of such an...