Commonwealth Mut. Fire Ins. Co. v. Hayden

CourtSupreme Court of Nebraska
Writing for the CourtSULLIVAN
Citation83 N.W. 922,60 Neb. 636
Decision Date18 October 1900
PartiesCOMMONWEALTH MUT. FIRE INS. CO. ET AL. v. HAYDEN ET AL.

60 Neb. 636
83 N.W. 922

COMMONWEALTH MUT. FIRE INS. CO. ET AL.
v.
HAYDEN ET AL.

Supreme Court of Nebraska.

Oct. 18, 1900.



Syllabus by the Court.

[83 N.W. 922]

1. Recitals which are not contractual elements of a policy of insurance are not conclusive on the parties thereto.

2. Contracts which contravene the established policy of this state cannot be enforced by action in its courts.

3. A foreign insurance company, which has done business in this state without complying with the conditions prescribed by our statutes, cannot rightfully claim of our courts, as an exercise of comity, the enforcement of contracts made with our citizens insuring property in this state.

4. Full faith and credit will be given a judgment of a sister state by which an assessment has been made against members of an insolvent mutual insurance company, although such members were residents of this state, and not served with summons or other jurisdictional process.

5. A stockholder is bound by a decree of a court of equity against a corporation in enforcement of a corporate duty, although not a party as an individual, but only through representation by the company. Hawkins v. Glenn, 9 Sup. Ct. 739, 131 U. S. 319, 33 L. Ed. 184.

6. The theory upon which a stockholder is held to be concluded by a judgment rendered against him in a suit brought to enforce a corporate obligation is that, although not personally served with process, he is before the court

[83 N.W. 923]

as an integral part of the corporation, and that the corporation represents him.

7. Membership in a mutual insurance company ceases with the expiration of the member's policy and payment of liabilities incurred while the policy was in force. Jurisdiction of such a company does not include jurisdiction of ex-members, who are not in fact indebted on account of the policies which they once held.

8. And in an action in this state to enforce the judgment of a sister state against such ex-member he may allege and show that the court had no jurisdiction to render such judgment against him.

9. In an action to enforce the judgment of a foreign court of general jurisdiction, the burden is on the defendant to show the nonexistence of jurisdictional facts.


Error to district court, Douglas county; Keysor, Judge.

Action by the Commonwealth Mutual Fire Insurance Company and others against Hayden Bros. From a judgment for defendants, plaintiffs appeal. Reversed.

Richard S. Horton, for plaintiffs in error.

T. J. Mahoney, for defendants in error.


SULLIVAN, J.

The Commonwealth Mutual Fire Insurance Company, a Massachusetts corporation, issued two fire insurance policies to Hayden Bros., insuring property owned by them and in their possession at Omaha, in this state. After one of the policies had expired, but while the other was in force, the company became insolvent, and passed into the hands of a receiver, who brought this action to recover assessments made against the defendants for the purpose of paying losses and liabilities incurred. The district court held on demurrer to the petition that the facts pleaded did not constitute a cause of action, and gave judgment accordingly. Counsel for plaintiff contends for two propositions: (1) That the contracts were made in Massachusetts; that they are valid in that state, and therefore enforceable in this. (2) That the assessments were made by a court of general jurisdiction in the domicile of the corporation, and that the amounts charged against defendants and their obligation to pay the same are established by a valid adjudication.

Notwithstanding the recitals of the policies indicating that they were issued by the company's Omaha agency, we think it clear that the averment of the petition that they were executed in Massachusetts must be taken as true. The recitals are not contractual elements, and consequently are not conclusive upon the plaintiff. It has, in effect, alleged that they are false, and no reason is perceived why that allegation may not be sustained by proof. 1 Greenl. Ev. (15th Ed.) § 285. But whether these contracts were made in Massachusetts or Nebraska, they contravene the policy of this state, and could not be enforced by action in our courts. The statute prescribing the conditions upon which foreign insurance companies may do business here is a police regulation designed to protect our...

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24 practice notes
  • Royal Ins. Co. v. Stewart , No. 9659.
    • United States
    • Indiana Court of Appeals of Indiana
    • 17 Diciembre 1918
    ...1489, 1497; 3 Cooley's Briefs on Ins. pp. 2237, 2252; 3 Joyce on Ins. pp. 3101, 3227, 3244, 3465, 3467; Conn. Fire Ins. Co. v. Jeary, 60 Neb. 636, 83 N. W. 922, 51 L. R. A. 698, and notes, 83 Am. St. Rep. 545;Farmers' F. Ins. Co. v. Bates & Co., 60 Ill. App. 39, 42;Liverpool etc., Co. v. Ke......
  • Gould Land and Cattle Company v. The Rocky Mountain Bell Telephone Company
    • United States
    • United States State Supreme Court of Wyoming
    • 29 Mayo 1909
    ...corporation that is denied. This rule has been applied by the Supreme Court of Nebraska in the case of Mutual Fire Ins. Co. v. Hayden, 60 Neb. 636, 83 Am. St. 545, 83 N.W. 922. The same court extended and applied that principle to the case of an attempted foreclosure of a mortgage by a non-......
  • Brownell v. Adams, No. 27682.
    • United States
    • Nebraska Supreme Court
    • 29 Mayo 1931
    ...for insolvency.” State v. Citizens' State Bank, 115 Neb. 776, 214 N. W. 933. In the case of Commonwealth Mutual Fire Ins. Co. v. Hayden, 60 Neb. 636, 83 N. W. 922, 923, 83 Am. St. Rep. 545, we said: “In Hawkins v. Glenn, 131 U. S. 319, 329, 9 S. Ct. 739, 33 L. Ed. 184, it was held that: ‘Th......
  • Oliver Co. v. Louisville Realty Co.
    • United States
    • Court of Appeals of Kentucky
    • 19 Diciembre 1913
    ...743; Seamans v. Temple Co., 105 Mich. 400, 63 N.W. 408, 28 L.R.A. 430, 55 Am.St.Rep. 457; Commonwealth Mutual Fire Ins. Co. v. Hayden, 60 Neb. 636, 83 N.W. 922, 83 Am.St.Rep. 545; Tri-State Amusement Co. v. Forest Park Highlands Amusement Co., 192 Mo. 404, 90 S.W. 1020, 4 L.R.A. (N. S.) 688......
  • Request a trial to view additional results
24 cases
  • Royal Ins. Co. v. Stewart , No. 9659.
    • United States
    • Indiana Court of Appeals of Indiana
    • 17 Diciembre 1918
    ...1489, 1497; 3 Cooley's Briefs on Ins. pp. 2237, 2252; 3 Joyce on Ins. pp. 3101, 3227, 3244, 3465, 3467; Conn. Fire Ins. Co. v. Jeary, 60 Neb. 636, 83 N. W. 922, 51 L. R. A. 698, and notes, 83 Am. St. Rep. 545;Farmers' F. Ins. Co. v. Bates & Co., 60 Ill. App. 39, 42;Liverpool etc., Co. v. Ke......
  • Gould Land and Cattle Company v. The Rocky Mountain Bell Telephone Company
    • United States
    • United States State Supreme Court of Wyoming
    • 29 Mayo 1909
    ...corporation that is denied. This rule has been applied by the Supreme Court of Nebraska in the case of Mutual Fire Ins. Co. v. Hayden, 60 Neb. 636, 83 Am. St. 545, 83 N.W. 922. The same court extended and applied that principle to the case of an attempted foreclosure of a mortgage by a non-......
  • Brownell v. Adams, No. 27682.
    • United States
    • Nebraska Supreme Court
    • 29 Mayo 1931
    ...for insolvency.” State v. Citizens' State Bank, 115 Neb. 776, 214 N. W. 933. In the case of Commonwealth Mutual Fire Ins. Co. v. Hayden, 60 Neb. 636, 83 N. W. 922, 923, 83 Am. St. Rep. 545, we said: “In Hawkins v. Glenn, 131 U. S. 319, 329, 9 S. Ct. 739, 33 L. Ed. 184, it was held that: ‘Th......
  • Oliver Co. v. Louisville Realty Co.
    • United States
    • Court of Appeals of Kentucky
    • 19 Diciembre 1913
    ...743; Seamans v. Temple Co., 105 Mich. 400, 63 N.W. 408, 28 L.R.A. 430, 55 Am.St.Rep. 457; Commonwealth Mutual Fire Ins. Co. v. Hayden, 60 Neb. 636, 83 N.W. 922, 83 Am.St.Rep. 545; Tri-State Amusement Co. v. Forest Park Highlands Amusement Co., 192 Mo. 404, 90 S.W. 1020, 4 L.R.A. (N. S.) 688......
  • Request a trial to view additional results

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