German Ins. Co. v. Frederick

• Decision Date: 02 October 1893
• Docket Number: 267.
• Citation: 58 F. 144
• Parties: GERMAN INS. CO. OF FREEPORT, ILL., v. FREDERICK.
• Court: U.S. Court of Appeals — Eighth Circuit

58 F. 144

GERMAN INS. CO. OF FREEPORT, ILL., v. FREDERICK.

No. 267.

United States Court of Appeals, Eighth Circuit.

October 2, 1893

H. M Jackson, for plaintiff in error.

A. F Martin, for defendant in error.

Before CALDWELL and SANBORN, Circuit Judges, and THAYER, District Judge.

CALDWELL Circuit Judge.

This action was brought by Lucy Frederick, the defendant in error against the German Insurance Company of Freeport, Ill., and a corporation of that state, on the 18th of November, 1884, in the district court of Brown county, Kan., and afterwards removed by the defendant to the circuit court of the United States for the district of Kansas, to recover $1,147, and interest, upon a fire insurance policy issued by the defendant company to the plaintiff, insuring the plaintiff's dwelling house for $1,000, and household furniture for $200, against loss by fire.

In addition to a general denial, the answer set up the following defenses: (1) Failure to make proof of loss in the time and manner required by the policy; (2) the payment to the plaintiff of $58, for which sum the plaintiff executed a receipt in full satisfaction of the loss, and surrendered the policy sued on to the defendant, the answer averring that the receipt was executed and the policy 'delivered by plaintiff upon a full explanation and statement to her of the claims of the defendant that said policy was null and void by reason of prior insurance upon plaintiff's said property which had not been disclosed or made known to this defendant at the time said policy so sued upon was issued;' (3) prior insurance in the Continental Insurance Company, without the knowledge or consent of the defendant; (4) that the action was barred by a provision of the policy to the effect that no suit should be maintained thereon unless commenced within six months after the loss occurred. There was a trial before a jury, and a verdict and judgment for the plaintiff, and the defendant sued out this writ of error.

There were two summonses issued in the case, and the defendant's contention is that the service of the first was defective, and that the second was not served until after the period of limitation prescribed by the policy had run. The only mode in which this question is saved and assigned for error is by an exception to the refusal of the court to give the following instruction to the jury:

'Such policy of defendant also contains the following clause: 'It is mutually agreed that no suit or action against this company upon this policy shall be sustainable in any court of law of equity unless commenced within six months after the loss or damage shall occur; and, if any suit or action shall be commenced after the expiration of said six months, the lapse of time shall be taken and deemed as conclusive evidence against the validity of such claim, any statute of limitation to the contrary notwithstanding.' And if the jury believe from the evidence that on July 19, 1884, the insured property was destroyed or injured by fire, and that on November 18, 1884, plaintiff, by her attorneys, filed her petition in the district court of Brown county, Kansas, and that on that day summons was issued by the clerk of said district court, directed to the sheriff of Shawnee county, Kansas, for service upon the state superintendent of insurance for the state of Kansas, and that said defendant appeared specially in said cause, and moved the court to quash and set aside the service of such summons, and said cause remained pending in said court, without any further or other appearance by said defendant, and without any order being made by said court upon such motion, until June 30, 1885, and that on said last-mentioned day the plaintiff caused another summons to be issued upon such petition against the defendant, and the defendant subsequently appeared therein, then said action must be deemed to have been commenced upon said June 30, 1885, and the verdict must be for the defendant.'

The statute then in force in Kansas provided that an action should be deemed commenced at the date of the service of the summons on the defendant, with certain exceptions and qualifications not material to this case. The act relating to service of process on a foreign insurance company doing business in the state (1 Gen. St. Kan. 1889, p. 981, par. 3354) provided that such company 'shall file in the insurance department its written consent * * * that actions may be commenced against such company * * * by the service of process on the superintendent of insurance;' and that 'the summons shall be directed to the superintendent of insurance, and * * * be forthwith forwarded by the clerk of the court to the superintendent of insurance, who shall immediately forward a copy thereof to the secretary of the company sued, and another copy to the general agent of said company, if any such agent reside in this state; and thereupon said superintendent shall make return of said summons to the court whence it issued, showing the date of its receipt by him, the date of forwarding such copies, and the name and address of each person to whom he forwarded such copy.' The summons issued by the clerk was directed to the sheriff of Shawnee county, and was served by that officer on the superintendent of insurance, who made this return thereon:

'State of Kansas, Insurance Department.

'I, R. B. Morris, superintendent of insurance of the state of Kansas, do hereby certify that I received the annexed copy of a summons in case of Lucy Frederick vs. The German Insurance Co. of Freeport, Illinois, said to be issued by the clerk of district court of Brown county, Kansas, second judicial district, dated the 18th day of Nov., 1884, on the 25th day of November, A. D. 1884, at 9 o'clock A. M., and that on the 25th day of November, A. D. 1884, I forwarded a duly certified copy of the same, by depositing it in the United States mails, postage paid, addressed as follows: 'Fred Gund, Sec'y German Insurance Co., Freeport, Illinois.' Said company has no general agent residing in this state. In witness whereof, I have hereunto set my hand and affixed my official seal, at the city of Topeka, this 25th day of Nov., A. D. 1884.

'R. B. Morris, Superintendent.'

On the 19th day of January, 1885, the defendant appeared specially and filed a motion 'to quash and set aside the pretended service of summons,' because the summons was directed to the sheriff, and not to the superintendent of insurance, and was served by the sheriff, when it should have been directed and forwarded to the superintendent of insurance by the clerk. The superintendent of insurance took no exceptions to the method of serving him with the summons, but made a return acknowledging service thereon, and showing that he forwarded, in due time and manner, a certified copy of the same to the defendant company, as required by law. The objection is not that the defendant did not receive the notice of the commencement of the suit, but that such notice did not bind it, because the summons was directed to the sheriff instead of to the superintendent of insurance. Another summons was issued and served June 30, 1885. On the 8th of September, 1885, the defendant appeared generally, and filed a 'motion to make more definite and certain,' and on the 17th of December, 1889, it filed its answer to the merits without reservation or qualification. At the time the motion for a more specific statement was filed, and at the time the answer was filed, the motion to quash the service of the first summons had not been disposed of. There was a mistrial of the cause at the June term, 1889, and it was tried again in November, 1892, and it was during this last trial that the motion to quash the service of the summons was called up, and decided by the court adversely to the plaintiff in error. Seven years elapsed between the time the motion was filed and the judgment of the court invoked upon it, and during this time the defendant had answered to the merits, and the cause had been twice tried. Upon this state of the record we do not find it necessary to decide whether the motion to quash the summons was well founded or not. Assuming, but not deciding, that it was well founded, and conceding that the defendant had a right to make a special appearance to object to the jurisdiction of the court over its person without subjecting itself to such jurisdiction, it is apparent that upon the facts disclosed by the record the plaintiff in error cannot now avail itself of this objection. In some states the defendant may appear specially, and move to set aside the service of the summons upon him, without thereby subjecting himself to the jurisdiction of the court. 'Nor,' in the language of the supreme court, 'is the objection waived when, being urged, it is overruled, and the defendant compelled to answer.' Harkness v. Hyde, 98 U.S. 476. But the rule is uniform that a defendant desirous of challenging the sufficiency of the service upon him must do so at the threshold, and appear for that purpose alone, and that, if he appears to the case for any other purpose before such motion is disposed of, he thereby waives the benefit of it. Construction Co. v. Fitzgerald, 137 U.S. 92, 11 S.Ct. 36; Meixell v. Kirkpatrick, 29 Kan. 679, and note. Upon the facts of this case it is clear that the defendant...