Export Ins. Co v. Womack, (No. 6036.)
| Decision Date | 16 February 1928 |
| Docket Number | (No. 6036.) |
| Citation | 142 S.E. 851,165 Ga. 815 |
| Parties | EXPORT INS. CO. v. WOMACK. |
| Court | Georgia Supreme Court |
(Syllabus by the Court.)
Certified Question from Court of Appeals.
Action by J. E. Womack against the Export Insurance Company. Judgment for plaintiff, and defendant brings error. On certified question from Court of Appeals. Question answered.
For opinion of Court of Appeals conforming to answer to certified question, see 143 S. E. 151.
The Court of Appeals requested instruction from this court upon the following question:
"Where a suit is brought in the city court of Richmond county upon a policy of insurance issued by an insurance company which was not organized under the laws of this state, and which has no agency nor any place of doing business in the state, but which is transacting business here under the provisions of section 2446 of the Civil Code of 1910, and which (in accordance with such provisions) has appointed a resident of Fulton county to acknowledge or receive service of process for and in behalf of the company in all proceedings that may be instituted against it in any court of this state, and where service is perfected upon the company by having the sheriff of Fulton county leave with such resident of the county, person ally, in the county of Fulton, a copy of a second original of the petition and process of the suit, and where the company did not have an agency or a place of doing business in Richmond county, either at the time the contract sued on was made or at the time the cause of action accrued or at the time when the suit was instituted (the above referred to resident of Fulton county being the only agent of the company in this state upon whom service of the process in the suit could be made), and where the petition fails to show in what county the contract was made, or where the loss sued for occurred, or where the plaintiff resided, has the city court of Richmond county jurisdiction of the suit?"
Smith, Hammond & Smith, of Atlanta, and Hull, Barrett & Willingham, of Augusta, for plaintiff.
W. Inman Curry, of Augusta, for defendant.
We think the question of the Court of Appeals should be answered in the affirmative. It is, of course, a fundamental rule of common-law jurisprudence, requiring no citation of authority, that a personal judgment cannot be rendered against a defendant nonresident of the state, unless the defendant or agent of the defendant can be found and served within the geographical limits of the jurisdiction of the court. This is, perhaps, as strong a statement of common-law rule as can be made. However, it must be borne in mind that this rule has been subjected to so many statutory changes that the real question before us is, What is the true law of Georgia as to the question propounded? Under the provisions of section 2563 of the Civil Code 1910—
"Whenever any person may have any claim or demand upon any insurance company having agencies, or more than one place of doing business, it shall be lawful for such person to institute suit against said insurance company within the county where the principal office of such company is located, or in any county where said insurance company may have an agent or place of doing business, or in any county where such agent or place of doing business was located at the time the cause of action accrued, or the contract was made out of which said cause of action arose."
This section was taken from Acts 1861, p. 58; Acts 1862-63, p. 161; Acts 1878-79, p. 54; Acts 1902, p. 53. This legislation was certainly an innovation of the common-law rule to which we have referred; and though Mr. Justice Evans dissented, the majority of this court held, in the opinion delivered by Mr. Chief Justice Fish in Jefferson Fire Ins. Co. v. Brackin, 140 Ga. 637, 79 S. E. 467, that the Code section applies alike to all insurance companies doing business in this state, domestic as well as foreign, and that in an action brought against a foreign insurance company on a fife policy in the superior court of the county wherein an agentand place of doing business were located when the policy was issued and the cause of action arose thereon, there being no agent or place of business in such county at the time the suit was filed, and service was perfected on a named person resident in another county of the state to acknowledge or receive service of process, and a second original and process was served on this agent resident in another county, this constituted legal service, and that a motion to dismiss the case for want of lawful service was properly denied. The court distinguished that case from the ruling in United States Casualty Co. v. Newman, 137 Ga. 447, 73 S. E. 667, in which this court, in response to a certified question from the Court of Appeals, held that there was no necessity or authority for the issuance of the second original under the facts stated in the question, and that, the person who was the agent of the company having ceased to represent it as its agent prior to the bringing of the suit, service upon him was entirely nugatory. However, in its answer to the question this court recognized the doctrine of the rule stated in Devereux v. Atlanta Railway & Power Co., 111 Ga. 855, 36 S. E. 939, in which this court held that:
"The sole jurisdictional fact being the place of the origin of the cause of action, and the statute not superadding the further fact of the residence of an agent as one requisite to jurisdiction, it must be held that the scheme of the law is to make the jurisdiction exclusive in the county where the cause of action originates when there is such residence, but elective when there is not."
Under the facts stated in the question, it is very plain that the provisions of section 2563 cannot be applied to the suit of the plaintiff in this case. The provisions of that section refer only to persons having a claim or demand "upon any insurance company having agencies or more than one place of doing business." The company to which the present question refers has no agency and no place of doing business in this state or any principal office located in this state. Section 2446 provides:
"Any insurance company not organized under the laws of this state, desiring to transact business in this state, shall file with the insurance commissioner a written instrument or power of attorney, duly signed and sealed, appointing and authorizing some person, who shall be a resident of this state, to acknowledge or receive service of process, and upon whom process may be served, for and in behalf of such company, in all proceedings that may be instituted against such company in any court of this state, or any court of the United States in this state, and consenting that service of process upon any agent or attorney appointed under the provisions of this section shall be taken and held to be as valid as if served upon the company; and such instrument shall further provide that the authority of such attorney shall continue until revocation of his appointment is made by such company by filing a similar instrument with said insurance commissioner, whereby another person shall be appointed as such attorney: Provided, however, that the provisions of this section shall not be construed to alter or amend the laws now of force in this state relative to bringing suits and serving process on foreign corporations doing business in this state."
The section was taken from an act passed in 1887 (Ga. L. 1887, p. 123). We are of the opinion, in view of the fact that section 2563 () made no provision for such instances as that now before us and there was no other provision in the Code to cover such a case, that it was the purpose of the General Assembly in the passage of this provision of the Act of 1887 to fix the venue of actions against foreign Insurance companies having no agency or place of business in this state "in any court of this state, or any court of the United States in this state, " "in all proceedings that may be instituted against" it in this state. To use the precise phrase used by Mr. Chief Justice Simmons in the Devereux Case, the scheme of the law was to make jurisdiction elective where there is no resident agent within the state.
"A foreign insurance company which fails to maintain an agency does not, by appointing, or having the commissioner of insurance to appoint, an agent upon whom service may be perfected under Civil Code, § 2057 [now section 2446], acquire a fixed residence in the county of such agent's residence." Equity Life Association v. Gammon, 119 Ga. 271 (3), 46 S. E. 100.
So the question presents a case where, as insisted by plaintiff in error, there is no other provision fixing the venue of the action, unless it be held that the suit must be brought in the county of the residence of the agent named by the company and appointed by the insurance commissioner, or a person who has a demand against a nonresident insurance company who has no agency or place of doing business in the state has the option to bring his suit in any court in any county in the state. Under the ruling in the Gammon Case, since the foreign company acquired no residence in the county in which its nominated agent resides, one who has a claim or demand against an insurance company may nevertheless bring his action in that county, but it is, after all, a matter of his own election; and so why may not the plaintiff as well select Richmond county and the city court of Richmond county as the superior court of that county? Section 4 of the Civil Code requires that words shall be given their ordinary signification. If we simply transpose the portion of section 2446 which relates to jurisdiction, the meaning seems plain.
"In all proceedings that may be instituted against * * * any insurance company not organized under the laws of this state" "in any court of this state, or any court of the United States in this state,...
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