Gilbert v. New Zealand Ins Co.

• Decision Date: 21 March 1892
• Citation: 49 F. 884
• Parties: GILBERT et al. v. NEW ZEALAND INS. CO.
• Court: U.S. District Court — District of Oregon

49 F. 884

GILBERT et al. v. NEW ZEALAND INS. CO.

United States Circuit Court, D. Oregon.

March 21, 1892

At Law.

Mr Lewis L. McArthur and Mr. Tilmon Ford, for plaintiffs.

Mr Joseph Simon, for defendant.

DEADY District Judge.

This action is brought by the plaintiffs, citizens of Oregon against the defendants, a corporation organized under the laws of New Zealand, and alleged to be an 'inhabitant' of the state of Oregon, to recover an alleged loss by fire of $3,500, against which it had insured the plaintiffs.

The first complaint merely stated that the defendant was a New Zealand corporation, and plaintiffs were citizens of Oregon and on this it was contended that the parties were 'citizens of different states,' within the meaning of those words in section 1 of the judiciary act, (Supp. Rev. St. p.612,) and therefore the court had jurisdiction.

On demurrer to the complaint, the court held these words did not include an alien subject or corporation, but were confined to citizens of the 'states' of this Union.

The plaintiffs had leave to amend, and now allege that the defendant in 1888 engaged in the fire insurance business in Oregon, and, pursuant to the laws thereof concerning foreign insurance companies, deposited with the treasurer thereof the sum of $50,000, and filed with the insurance commissioner its power of attorney, whereby it duly authorized a proper person to accept service of process in any proceeding in any court of the United States therein, and thereupon received a license from said state to engage in such business, and established and has ever since maintained a place of business therein, and is now an inhabitant thereof, doing business therein as a fire insurance company, according to the laws of Oregon.

A demurrer was interposed to the amended complaint on the ground that the defendant, being a foreign corporation, is not an 'inhabitant' of this state, and cannot be sued therein without its consent.

On the argument counsel for the demurrer cited Hohorst v. Packet Co., 38 F. 273; Booth v. Manufacturing Co., 40 F. 1; Purcell v. Mortgage Co., 42 F. 465; while counsel for the plaintiffs cited Zambrino v. Railway Co., 38 F. 449; Riddle v. Railroad Co., 39 F. 290; Miller v. Mining Co., 45 F. 347.

The last case was decided in this court, in which I held, in the language of the syllabus:

'A foreign corporation may be an 'inhabitant' of a district or county other than that of which it is a citizen or subject, or where it was organized, within the meaning and purpose of the term, as used in section 1 of the judiciary act.'

At the time I had before me and considered the first three of the above-cited cases, which hold otherwise, but was not persuaded by them.

Since then I have not seen nor heard anything to change my opinion, but much to strengthen and confirm it, in an opinion delivered by Mr. Justice HARLAN in the case of U.S. v. Railway Co., 49 F. 297.

The case arose in the northern district of California, and was heard under section 617 of the Revised Statutes. In the course of his opinion Mr. Justice HARLAN said that no 'case in the supreme court of the United States directly decides that a corporation may not, in addition to its primary legal habitation or home in the state of its creation, acquire a habitation in or become an inhabitant of another state for purpose of business and of jurisdiction in personam;' and holds that the defendant-- a corporation created under the laws of Kentucky, but doing business in California pursuant to the laws thereof--is, for the time being, an 'inhabitant' of said state, within the meaning and purpose of the clause of section 1 of the judiciary act, which provides that 'no civil suit shall be brought before either of said courts (circuit) against any person or by any original process or proceeding in any other district than that whereof he is an inhabitant.'

In Bank v. Deveaux, 5 Cranch. 88, it is stated by Mr. Chief Justice MARSHALL that the word 'inhabitant,' in the statute of Hen. VIII., concerning bridges and...