Bankers Life Insurance Company v. Robbins

• Decision Date: 09 December 1897
• Docket Number: 7628
• Citation: 73 N.W. 269,53 Neb. 44
• Parties: BANKERS LIFE INSURANCE COMPANY, APPELLANT, v. A. M. ROBBINS, EXECUTOR, APPELLEE, ET AL. [*]
• Court: Nebraska Supreme Court

73 N.W. 269

53 Neb. 44

BANKERS LIFE INSURANCE COMPANY, APPELLANT, v. A. M. ROBBINS, EXECUTOR, APPELLEE, ET AL. ^[*]

No. 7628

Supreme Court of Nebraska

December 9, 1897

APPEAL from the district court of Lancaster county. Heard below before STRODE, J. Reversed.

Reversed.

John H Ames and E. F. Pettis, for appellant:

Service of summons in Valley county was not made upon any agent of the insurance company. There is no evidence that the company ever had an agent in that county, but the contrary is affirmatively shown. The judgment in the district court of Valley county is void. (Enewold v. Olsen, 39 Neb 59; Chambers v. Bridge Manufactory, 16 Kan. 270; Caruthers v. Hartsfield, 3 Yerg. [Tenn.] 366 Ridgeway v. Bank of Tennessee, 11 Humph. [Tenn.] 523; Bond v. Wilson, 8 Kan. 228; Starkweather v. Morgan, 15 Kan. 274; Glass v. Smith, 66 Tex. 548; Rickets v. Hitchens, 34 Ind. 348; Dobson v. Pearce, 12 N.Y. 156.)

Relief should be granted when a judgment is shown to be void. (Blakeslee v. Murphy, 44 Conn. 188; Brickley v. Heilbruner, 7 Ind. 488; Grass v. Hess, 37 Ind. 193; Chambers v. Hodges, 23 Tex. 110; Cooke v. Burnham, 32 Tex. 129; Glass v. Smith, 66 Tex. 548; Collins v. Fraiser, 27 Ind. 477; McNiell v. Edie, 24 Kan. 108.)

Appellant in this action pleaded a sufficient defense to the alleged cause of action in which the void judgment was rendered. The fact that assured, in violation of the policy, concealed the danger to which he was exposed, was sufficient to avoid the contract of insurance. (North American Fire-Ins. Co. v. Throop, 22 Mich. 146; New York Bowery Fire Ins. Co. v. New York Fire Ins. Co. of the City of New York, 17 Wend. [N. Y.] 359; Hartman v. Keystone Ins. Co., 21 Pa. St. 466; Swift v. Massachusetts Mutual Life Ins. Co., 63 N.Y. 186; Commonwealth Ins. Co. v. Monninger, 18 Ind. 352; Goddard v. Monitor Mutual Fire Ins. Co., 108 Mass. 56; Kelsey v. Universal Life Ins. Co., 35 Conn. 225; Ring v. Phoenix Assurance Co., 145 Mass. 426; Jennings v. Chenango County Mutual Ins. Co., 2 Denio [N. Y.] 75; Brady v. United Life Ins. Ass'n, 60 F. 727; McFarland v. St. Paul Fire & Marine Ins. Co., 46 Minn. 519; Singleton v. St. Louis Mutual Ins. Co., 66 Mo. 63; Smith v. National Benefit Society, 123 N.Y. 85; Dwight v. Germania Life Ins. Co., 103 N.Y. 341.)

A. M. Robbins and Reese & Gilkeson, contra:

The original action was properly brought in Valley county, and that was the proper place to bring the action. (Code of Civil Procedure sec. 55; Union Central Life Ins. Co. v. Pyers, 36 O. St. 544; Bruil v. Northwestern Mutual Relief Ass'n, 39 N.W. 529 [Wis.]; Insurance Co. of North America v. McLimans, 28 Neb. 657; Harrey v. Parkersburgh Ins. Co., 16 S.E. [W. Va.] 580.)

There was proper service in Valley county upon agents of the company. (Compiled Statutes, ch. 16, sec. 8; State v. United States Mutual Accident Ass'n, 31 N.W. 229 [Wis.]; Southwestern Mutual Benefit Ass'n v. Swenson, 30 P. 405 [Kan.]; Voorhees v. People's Mutual Benefit Society, 48 N.W. 1087 [Mich.]; Pacific Mutual Life Ins. Co. v. Williams, 15 S.W. 478; Southern Ins. Co. v. Wolverton Hardware Co., 19 S.W. 615; Reyer v. Odd Fellows' Fraternal Accident Ass'n, 32 N.E. 469 [Mass.]; Gibson v. Manufacturers' Fire & Marine Ins. Co., 10 N.E. 730 [Mass.]; St. Louis & S. F. R. Co. v. Deford, 16 P. 442 [Kan.]; State v. Northwestern Endowment & Legacy Ass'n, 22 N.W. 135 [Wis.]; State v. Farmer, 5 N.W. [Wis.] 892; State v. Farmers & Mechanics Mutual Benevolent Ass'n, 18 Neb. 276.)

The petition for injunction does not state facts sufficient to constitute a cause of action, but does show that appellant had an adequate remedy at law. (Hurlburt v. Palmer, 39 Neb. 158; Anheuser-Busch Brewing Ass'n v. Peterson, 41 Neb. 897; Marine Ins. Co. v. Hodgson, 7 Cranch [U. S.] 332; Mastick v. Thorp, 29 Cal. 447; Englebrecht v. Shade, 47 Cal. 627; Hopkins v. Keller, 16 Neb. 571; 1 High, Injunction secs. 29, 125, 129, 131; Patterson v. Hill, 16 N.W. 599 [Ia.]; Horn v. Queen, 4 Neb. 108; Pope v. Hooper, 6 Neb. 178; Kittle v. Wilson, 7 Neb. 76; Pilger v. Torrence, 42 Neb. 903; Paul v. Davidson, 43 Neb. 505; Massachusetts Benefit Life Ass'n v. Lohmiller, 74 F. 23; Woodward v. Pike, 43 Neb. 777; Langley v. Ashe, 38 Neb. 53; Norwegian Plow Co. v. Bollman, 47 Neb. 186; San Antonio & A. P. R. Co. v. Cockvill, 10 S.W. 702.)

Receipt and retention of premiums after loss constitute a waiver of forfeiture of the policy. An insurer cannot hold the fruits of a fraudulent transaction and at the same time plead the fraud of insured. (Rice v. New England Mutual Aid Society, 146 Mass. 248; McGurk v. Metropolitan Life Ins. Co., 56 Conn. 528; Billings v. German Ins. Co., 34 Neb. 502; Farmers Union Mutual Ins. Co. v. Wilder, 35 Neb. 573; Zell v. Herman Farmers Mutual Ins. Co., 44 N.W. 829 [Wis.]; Smith v. St. Paul Fire & Marine Ins. Co., 13 N.W. 355 [Dak.].)

There was no competent evidence that statements in assured's application for insurance were untrue, or that the risk was hazardous. (Fraternal Mutual Life Ins. Co. v. Applegate, 7 O. St. 297; Washington Life Ins. Co. v. Haney, 10 Kan. 403; Rawls v. American Life Ins. Co., 36 Barb. [N. Y.] 357; John Hancock Mutual Life Ins. Co. v. Daly, 65 Ind. 6.)

OPINION

See opinion for statement of the case.

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, Nebraska, in which county he subsequently died. In the district court of said county Mrs. Morrow brought suit on said insurance policy 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.

1. 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. (Union Central Life Ins. Co. v. Pyers, 36 Ohio St. 544; Bruil v. Northwestern Mutual Relief Ass'n, 72 Wis. 430, 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 of Civil Procedure, 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 of Civil Procedure, 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. (Fremont Butter & 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 persons 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...