Germania Ins. Co. v. Ashby

• Decision Date: 12 December 1901
• Citation: 65 S.W. 611,112 Ky. 303
• Parties: GERMANIA INS. CO. v. ASHBY. [1]
• Court: Kentucky Court of Appeals

65 S.W. 611

112 Ky. 303

GERMANIA INS. CO. v. ASHBY. ^[1]

Court of Appeals of Kentucky.

December 12, 1901

Appeal from circuit court, Muhlenberg county.

"To be officially reported."

Action by S. A. Ashby against Germania Insurance Company on a policy of fire insurance. Judgment for plaintiff, and defendant appeals. Affirmed.

Jonson & Wickliffe, for appellant.

W. H Yost and H. P. Taylor, for appellee.

WHITE J.

This is an action on a policy of insurance covering a stock of groceries and the building wherein they were kept. The policy was for $400 on the stock and $100 on building, and the action seeks to recover these sums for a total loss. The answer admitted the issual of the policy, but denied the loss of any goods, and pleaded that appellee in his application had falsely stated that he was the owner in fee of the land when in fact he had no title thereto. It was also pleaded that satisfactory proof of loss had not been furnished the company. Appellee admitted signing the application, but said he did not read the application, which was written by the agent of appellant; that he started to read the application but was advised by the agent that it was a mere form for his own report to the company. He further pleaded that, while he did not have title to the land on which the house stood, he informed the agent at the time of the contract the exact state of the title,--that he had a bond or writing agreeing to make him title from the person from whom he purchased. Upon the issues thus presented a trial was had, which resulted in a verdict and judgment for the full sum claimed.

At the threshold we are met with a question of jurisdiction of the appellant, which was presented by motion to quash the service of process on the commissioner of insurance upon the affidavit that the appellant had withdrawn from this state and ceased to do business herein. It is conceded that when appellant was admitted to do business in this state it filed its written consent that service upon the insurance commissioner should be sufficient to notify it of all proceedings and actions that might be instituted. It stands admitted (by not being denied) that at the date of the service the appellant had withdrawn from the state. The provision of the law which appellant complied with upon its admission to do business here reads: "Before authority is granted to any foreign insurance company to do business in this state, it must file with the commissioner a resolution adopted by its beard of directors, consenting that service of process upon any agent of such company in this state, or upon the commissioner of insurance of this state, in any action brought or pending in this state shall be a valid service upon said company." Ky. St. § 631. There is no provision in the law limiting this consent to such time as the insurance company shall do business in this state. The object and purpose of the statute, supra, was to provide a mode of service to citizens who should desire to sue upon contracts of the insurance company, rather than compel them to go to the state of the corporation for redress. If this consent is to be withdrawn as soon as the company withdraws, the provision, so far as the insurance commissioner is concerned, would be a useless provision. As long as the company is engaged in business here, service can be had on the agent; but where it ceases to do business, and has no agents, there is a necessity for some person upon whom process might be had. We conclude, therefore, when the reason of the statute is taken into consideration, that it is intended that the consent to service on the insurance commissioner is not limited to the time when the company is soliciting business here, but extends to all business...