Barnes v. Union Central Life Ins. Co.
| Decision Date | 02 February 1916 |
| Parties | Barnes v. Union Central Life Insurance Company. |
| Court | Kentucky Court of Appeals |
Appeal from Franklin Circuit Court.
O'REAR & WILLIAMS for appellant.
T. L. EDELEN for appellee.
This action was brought by the appellant, Jennie F. Barnes, widow of Clinton J. Barnes, deceased, to recover of the appellee, Union Central Life Insurance Company, $5,000.00 claimed to be due on a policy of insurance on the decedent's life, issued by it, payable to her. It is alleged in the petition that appellee was incorporated under the laws of Ohio; that the contract of insurance, evidenced by the policy, was made in Virginia, in which State appellee was then doing business and the decedent then, and until his death, resided; and that appellee is now and was at the time of the institution of the action, doing business in Kentucky. Though not so alleged in the petition, it seems to be admitted by the appellant that she is a non-resident of Kentucky. The summons issued upon the filing of the petition was served by the sheriff of Franklin county on appellee by delivering to M. C. Clay, Insurance Commissioner for the State of Kentucky, a true copy thereof.
Appellee by counsel appeared in the Franklin circuit court, and entered a motion to quash the summons and return, which motion was overruled, to which it excepted. It then filed a special demurrer to the petition, on the ground that it showed that the court had no jurisdiction of the case. The demurrer was overruled, to which appellee excepted. It thereupon, without waiving its objection to jurisdiction, filed an answer, alleging by way of plea to the jurisdiction,
Appellant filed a demurrer to the answer, which was, by the court, carried back to the petition and sustained. Appellant excepted to this ruling and upon her declining to plead further, the court dismissed her petition. From the judgment manifesting the above rulings she has appealed.
Appellee's demurrer to the jurisdiction of the circuit court admits the allegation of the petition that it was at the time of the institution of this action and is now doing business in this State, and its plea in abatement fails to deny that this is so. It is insisted for appellee, and such was the conclusion of the circuit court, that section 71, Civil Code, fixes the venue of an action against an incorporated insurance company either in the county in which its principal office or place of business is situated, or in the county where the transaction arose, if such transaction was with an agent; and that as appellee has not a chief office or place of business in Franklin county, and the transaction out of which appellant's action arose did not take place with an agent of appellee in that county, the circuit court thereof has no jurisdiction of appellee or of the action. On the other hand, it is insisted for appellant: (1) That an action on a contract of insurance made in another State can be maintained by the beneficiary in this State against a foreign insurance company doing business in this State; (2) that such action is not localized by section 71, Civil Code, but is transitory and therefore maintainable under section 78 of the Civil Code; (3) that, if it could properly be held that such action is localized by section 71 of the Code, and must, by reason thereof, be brought in the county in which is situated the principal office or place of business of such foreign insurance company, and the latter has no known or principal office or place of business in this State, then the insurance commissioner is by statute made its chief officer in this State, and the county in which his official domicile or residence is required by the statute to be maintained, is in law the county in which is situated the foreign insurance company's principal office and place of business. It is shown by the uncontroverted affidavit of B. G. Williams, one of appellant's attorneys, that appellee has no principal office or place of business in this State, unless the insurance commissioner is its principal officer and Franklin county, the county of his official residence, is its principal place of business; and it is not alleged by appellee's plea in abatement either that it has or has not a principal office or place of business in this State, but only alleged that Franklin county is not the county in which its principal office or place of business is situated and that its principal office or place of business is situated in the city of Cincinnati, Ohio.
As to the proposition first advanced by appellant's counsel, it is sufficient to say that the mere non-residence of appellant does not prevent her from maintaining an action in this State against a foreign insurance company doing business in the State. Such right of a nonresident was declared in N. W. Mutual Life Ins. Co. v. Lowry, 14 R., 600, and Cleary v. Union Central Life Ins. Co., 143 Ky., 540, although in neither of these cases was the question involved that is here raised. In the first case it was held that, notwithstanding the statute of limitations of the State of Alabama, where the contract of insurance was made, did not bar the action, the laches of the plaintiff in delaying for more than ten years to bring the action in this State, should be regarded as equivalent to a waiver or abandonment of her claim, consequently a judgment in her favor could not be rendered without permitting her to take advantage of her own gross negligence, to the prejudice of other policy holders of the insurance company. In the second case it was held that as the foreign insurance company was a resident of Wisconsin and the contract of insurance was made in Ohio, and the action was brared by the statute of limitations of the latter State, it could not be maintained in this State. But in N. W. Mutual Life Ins. Co. v. Lowry, supra, we in the opinion said: "It has been more than once held by this court that an action may be maintained in this State on policies of life insurance, by service of process on an agent here, although the principal office of the company may be in another State."
As already stated, it is admitted by the pleadings that when this action was instituted appellee was authorized to do, and was doing, business in this State. Section 571, Kentucky Statutes, provides:
"All corporations except foreign insurance companies formed under the law of this or any other State, and carrying on any business in this State, shall at all times have one or more known places of business in this State, and an authorized agent or agents thereat, upon whom process can be served; and it shall not be lawful for any corporation to carry on any business in this State until it shall have filed in the office of the Secretary of State a statement, signed by its president or secretary, giving the location of its office or offices in this State, and the name or names of its agent or agents thereat upon whom process can be served; and when any change is made in the location of its office or offices, or in its agent or agents, it shall at once file with the Secretary of State a statement of such change; and the former agent shall remain agent for the purpose of service until statement of appointment of the new agent is filed; and if any corporation fails to comply with the requirements of this section, such corporation, and any agent or employe of such corporation, who shall transact, carry on or conduct any business in this State, for it, shall be severally guilty of a misdemeanor, and fined not less than one hundred nor more than one thousand dollars for each offense."
It will be observed that foreign insurance companies are...
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