Continental Ins. Co. v. Hull

• Decision Date: 06 May 1913
• Citation: 132 P. 657,38 Okla. 307,1913 OK 275
• Parties: CONTINENTAL INS. CO. v. HULL.
• Court: Oklahoma Supreme Court

132 P. 657

38 Okla. 307, 1913 OK 275

CONTINENTAL INS. CO. v. HULL.

Supreme Court of Oklahoma

May 6, 1913

Rehearing Denied June 10, 1913.

Syllabus by the Court.

Section 5609, Comp. Laws 1909, being section 3947, Stats. 1893, was not repealed by section 3738, Comp. Laws 1909, and service of summons duly made upon the chief officer of the agency of a foreign insurance company, as authorized by section 5609, Comp. Laws 1909, is valid.

The various methods provided by the statute for obtaining service on foreign corporations are cumulative.

Error from County Court, Creek County; Josiah G. Davis, Judge.

Action by M. Hull against the Continental Insurance Company. Judgment for plaintiff, and defendant brings error. Affirmed.

Burwell Crockett & Johnson, of Oklahoma City, for plaintiff in error.

McDougal & Lytle, of Sapulpa, for defendant in error.

DUNN J.

This case presents error from the county court of Creek county and presents but one question for our consideration. The summons issued was served upon the chief officer of an agency of defendant insurance company, a foreign corporation, and from an order denying the motion of the defendant to quash the service, the cause has been lodged in this court for review.

Section 5609, Comp. Laws 1909, being section 3947, Stats. 1893 provides in reference to the service of summons on insurance companies: "Where the defendant is an incorporated insurance company, and the action is brought in a county in which there is an agency thereof, the service may be upon the chief officer of such agency." It is contended on the part of counsel for defendant that such service was invalid because of the provision of subdivision 4, § 3738, Comp. Laws 1909, which reads as follows: "No foreign insurance company shall be admitted and authorized to do business in this state until: * * * (4) It shall by duly executed instrument filed in his office, constitute and appoint the insurance commissioner and his successor, its true and lawful attorney, upon whom all lawful processes in any action or legal proceeding against it may be served and therein shall agree that any lawful process against its, or which may be served upon its, said attorney, shall be of the same force and validity as if served upon the company, and that the authority thereof shall continue in force, irrevocable, as long as any liability of the company remains outstanding in this state. Any process issued by any court of record in this state, and served upon such commissioner by the proper officer of the county in which said commissioner may have his office, shall be deemed a sufficient process on said company, and it is hereby made the duty of the insurance commissioner to promptly, after such service of process, forward by registered mail, an exact copy of such notice to the company; or, in case the company is of a foreign country, to the resident manager in this country; and also shall forward a copy thereof to the general agent of said company in this state."

The contention in reference to the foregoing statute is that it provides an exclusive method for serving summons or process upon any insurance company which has complied therewith and appointed the insurance commissioner as its attorney in fact for such process. That this act, which was approved March 17 1909 (Laws 1909, c. 21), repealed section 5609, supra. In this contention we are not able to concur. The question presented to us for our consideration has been passed upon by the Supreme Court of Kansas in the case of Jones v. American Central Insurance Co., 83 Kan. 44, 109 P. 1077, wherein in the syllabus it is said: "The various methods provided by statute for obtaining service of process on foreign corporations are cumulative." And also in the case of Burlington Insurance Co. v. Mortimer, 52 Kan. 784, 35 P. 807, wherein Mr. Justice Johnston, who prepared the OPINION, said: "The principal ground assigned for reversal is that, as no service was made upon the superintendent of insurance, no jurisdiction was obtained by the justice of the peace, and therefore the judgment is a nullity. The service was made in pursuance of section 14 of the Justices' Code, which is exactly the same as section 69 of [132 P. 658.] the Civil Code, and reads as follows: 'When the defendant is an incorporated insurance company, and the action is brought in the county in which there is an agency thereof, the service may be upon the chief officer of such agency.' Gen. Stat. of 1889, par. 4860. If this provision, which has been published in all editions of the General...