Corbett v. Physicians' Cas. Ass'n of Am.

• Decision Date: 10 March 1908
• Citation: 135 Wis. 505,115 N.W. 365
• Court: Wisconsin Supreme Court
• Parties: CORBETT v. PHYSICIANS' CASUALTY ASS'N OF AMERICA.

135 Wis. 505

115 N.W. 365

CORBETT

v.PHYSICIANS' CASUALTY ASS'N OF AMERICA.

Supreme Court of Wisconsin.

March 10, 1908.

Syllabus by the Judge.

A defendant in an action to preserve his status as not having been properly served with the summons must abstain from making any appearance in such action other than to raise the question of jurisdiction of his person.

If a defendant who shall not have been efficiently served with the summons, after appearing solely to raise the question in that regard, submits to a trial upon the merits, he cannot thereafter successfully question the jurisdiction of the court as to his person.

An exception to an adverse ruling on the objection to jurisdiction for want of an efficient service of the summons and a subsequent trial upon the merits participated in under protest by the one taking such exception, notwithstanding a plea that the right to further insist upon the jurisdictional defect is not waived, does not change the foregoing stated effect of a trial upon the merits.

A trial of an action upon the merits under all circumstances precludes a defendant participating therein from subsequently successfully challenging the result upon the ground of want of jurisdiction of the person.

The rule in some jurisdictions, that in case of an insurance company doing business in the state in violation of a statute requiring it as a condition precedent thereto to comply with the law qualifying the Commissioner of Insurance to receive service of a summons in an action against it in regard to such business, is estopped from successfully claiming in such action that such Commissioner was not so qualified, is recognized but the court is not committed thereto.

An insurance company which makes a contract of insurance with a resident of this state in violation of the statute (section 1978, St. 1898) prohibiting it from doing so, is estopped from raising the question of such violation to avoid liability on such contract, in case of the assured having participated in the transaction without knowledge, actual or constructve, of the facts.

The dominant purpose of such a statute is to protect residents of the state from being imposed upon by foreign insurance companies. In case any such company offers to do business with one within such protection, it holds itself out as having qualified to do such business, and the resident in the absence of knowledge, actual or constructive, to the contrary, may safely act upon the faith thereof.

The mere circumstance of an insurance corporation which is not qualified to transact business with a resident of this state, negotiating successfully with such resident in reference to a contract of insurance, using the United States mail as a medium of communication, does not efficiently impair the presumption, from the standpoint of the assured, that the corporation is qualified to do so.

A party to an action may call and examine upon the trial as a witness, an officer of a corporation adverse party, as under cross-examination and thereafter rebut such witness' evidence by counter or impeaching testimony.

Under the foregoing rule it is proper to prove that the adverse witness, prior to his being called, made statements inconsistent with those made on his examination.

If evidence upon a trial is specially restricted by the offer and the ruling receiving it to a particular purpose, as that of impeachment, the question of whether the ruling was erroneous turns on whether the evidence was competent for such purpose.

In case of evidence upon a trial being admitted for a particular purpose only, it cannot properly be considered for any other purpose in support of the judgment, or the judgment be reversed upon the ground that the evidence was improper for such other purpose.

The verdict of a jury on any controverted question of fact cannot be reversed on appeal, if there was any credible evidence to support it.

Appeal from Circuit Court, Sheboygan County; Michael Kirwan, Judge.

Action by Hattie B. Corbett against the Physicians' Casualty Association of America. Judgment for plaintiff, and defendant appeals. Affirmed.

Action to recover on an accident insurance policy issued on the mutual assessment plan.

The contract secured to plaintiff, as beneficiary, the sum of $3,000, in case of the death by accidental means of George W. Corbett, her husband. The complaint contained all allegations essential to a recovery. The anwer stated three defenses, as follows; in effect: (1) The defendant is a Nebraska corporation which has never complied with the laws of this state authorizing service of process upon it by serving upon the Commissioner of Insurance and the only service made was of that character; (2) without waiving the plea to the jurisdiction of the court the defendant shows that it never qualified to do business in this state and therefore, the making of the insurance contract was prohibited by section 1978, St. 1898, and is not enforceable in the courts of this state; (3) without waiving any right under the foregoing the allegations of the complaint as to the assured being a member in good standing of the association at the time he was injured are denied, and it is alleged that he was not such member by reason of his having failed to pay the last assessment upon his policy, which was due five days before his death, prior to the date of his injury. There were other allegations in the answer to the merits and a reply so that the issues as made up for trial involved these disputed matters: Did the court obtain jurisdiction of the defendant and the subject of the action by service of the summons upon the Insurance Commissioner under section 1955f, St. 1898? If such jurisdiction was obtained, it being admitted that the defendant was a Nebraska corporation and not competent to do business in this state by reason of its having failed to comply with the law in that regard, was the policy contract, though good in Nebraska, one enforceable at the suit of plaintiff in this state, under the circumstances, if the assured was a member of the association in good standing at the time of the accident? Was the assured such member, having paid the assessment upon his certificate due December 10, 1905, before he was injured? If he did not so make such payment, did he make it thereafter, and was the default waived?

The plea to the jurisdiction was tried first and overruled. Defendant by its counsel excepted to the ruling. No specific objection was made to then proceeding to a trial upon the merits, which was done. Before the hearing commenced there was a stipulation that the jurisdictional matter should first be disposed of and then, if the decision should be adverse to the defendant, the trial should proceed on the merits.

It appeared by the evidence and the pleadings, beyond controversy, that the association at the time of the accident had some fifty members in this state; that it was not qualified under the law to do business in this state; that it had no agent or place of business therein and conducted all its transactions by means of the United States mail. There was evidence further to this effect: The association, as was customary, issued the certificate to the assured and transmitted the same to him by mail in response to his application likewise received. The customary way in which the assured had made his payments was by sending checks through the mail. The following by-law was a part of the contract:

“Sec. 2. Upon receiving notice of an assessment, it is the duty of each member to remit promptly to the secretary-treasurer. Any member who shall not remit the amount of his assessment when due, shall become suspended, and will not be entitled to any benefits of the association until his certificate of membership shall have been reinstated, as hereinafter provided. Any such suspended member may be reinstated to membership upon the payment of the amount of the delinquent assessment, together with the amount of such other calls as may have been made upon the members of the association, after such member became suspended.”

The last assessment upon the certificate was payable December 10, 1905. A check dated December 10, 1905, signed by the assured for the amount thereof, inclosed in a letter, dated December 13, 1905, was deposited in the post office, duly addressed to the association, or its proper officer, and was thereafter received and put in process of collection before such association knew of the accident. Such accident occurred December 15, 1905, about ten o'clock in the forenoon. The assured, upon it happening, became unconscious. He so remained until he died. The association received notice of the accident the day before the check was paid. It received and retained the money till some time after its officer, duly authorized in the premises, visited Wisconsin and made a personal examination into the merits of plaintiff's claim, when the same was tendered back to the plaintiff in her capacity as administratrix of her husband's estate. There was a controversy on the evidence as to whether the letter containing the check was deposited in the post office prior to the accident and also as to whether the same was received and placed in course of collection prior thereto. There was no evidence showing, or tending to show affirmatively, that the assured, when he became a member of the association or at any time thereafter, knew that it had not complied with the laws of the state of Wisconsin, qualifying it to do business therein.

The jury rendered the following verdict:

“First question: Was the check which is in evidence and bears date of December 10, 1905, signed by plaintiff's husband, George W. Corbett, before he received the injury in the forenoon of December 15, 1905, which caused his death?

Answer: Yes.

Second question: Was the letter in which said check was inclosed when received by the defendant, deposited and left, or caused to be deposited and left, by said George...