Henning v. Planters' Ins. Co.

• Decision Date: 30 August 1886
• Citation: 28 F. 440
• Court: U.S. District Court — Western District of Tennessee
• Parties: HENNING v. PLANTERS' INS. CO.

28 F. 440

HENNING v. PLANTERS' INS. CO.

United States Circuit Court, W.D. Tennessee.

August 30, 1886

This was an action upon the judgment of a state court in Illinois and the facts are stated in the opinion. It appears by the proof which was rejected that the defendant company issued the policy of insurance through a broker at Chicago, and that it had issued many other policies through that and other brokers; the business all being done by mail, and the policies sent to and delivered at Chicago. The company did not comply, nor attempt to comply, with the statutes of Illinois regulating the business of foreign insurance companies in that state, and appointed no agent to receive service as required. The agent served was the broker through whom the policy was issued, and he had then ceased, in fact to be a broker for defendant, though whether he had ceased to be an 'agent' for the service of process as a contested fact, or inference of fact, depending on the phraseology of the Illinois statutes.

The defendant pleaded a special plea, denying that it was doing business in the state, or that the broker was its agent, and averring that the judgment was void, to which the plaintiff replied, and issue was joined; the plaintiff offered in evidence the record, which was objected to, and depositions to show the facts already stated. The defendant offered proof to show that Mitchell was only its broker in each transaction, etc. The case was submitted, upon stipulation, to be tried without a jury.

Ellett & Houston, for plaintiff.

T. B. Turley, for defendant.

HAMMOND J.

On the authority of the case of St. Clair v. Cox, 106 U.S. 350, S.C. 1 S.Ct. 354, it is my opinion that the judgment here must be for the defendant company. Mr. Justice FIELD there says:

'It is sufficient to observe that we are of opinion that, when service is made within the state upon an agent of a foreign corporation, it is essential, in order to support the jurisdiction of the court to render a personal judgment, that it should appear somewhere in the record-- either in the application for the writ, or accompanying its service, or in the pleadings, or the finding of the court-- that the corporation was engaged in business in the state. The transaction of business by the corporation in the state, general or special, appearing, a certificate of service by the proper officer on a person who is its agent there, would, in our opinion, be sufficient prima facie evidence that the agent represented the company in the business. It would then be open, when the record is offered as evidence in another state, to show that the agent stood in no representative character to the company; that his duties were limited to those of a subordinate employe, or to a particular transaction; or that his agency had ceased when the matter arose.

'In the record, a copy of which was offered in evidence in this case, there was nothing to show, so far as we can see, that the Winthrop Mining Company was engaged in business in the state when service was made on Colwell. The return of the officer, on which alone reliance was placed to sustain the jurisdiction of the state court, gave no information on the subject. It did not, therefore, appear even prima facie that Colwell stood in any such representative character to the company as would justify the service of a copy of the writ on him. The certificate of the sheriff, in the absence of this fact in the record, was insufficient to give the court jurisdiction to render a personal judgment against the foreign corporation. The record was therefore properly executed.'

The return thus declared against was that the officer had served a copy of the writ 'by delivering the same to Henry J. Colwell, Esq., agent of said Winthrop Mining Company, personally, in said county. ' Here the return is:

'Served this writ upon the within-named defendant, the Planters' Insurance Company, by delivering a copy thereof to and leaving same with Charles P. Mitchell, agent of said company, this fifteenth day of January, 1885; the president of said company not found in my county this fifteenth day of January, 1885.'

We look in vain for any suggestion, even, in the record that the defendant was, at the time of bringing the suit, or that it had been theretofore, 'doing business' in the state of Illinois. The praecipe does not suggest it, nor the writ, nor the return of service. From these it does not even appear that the defendant was a corporation foreign to the state of Illinois; and for all that is shown it might be a home corporation, as no distinction is intimated by the language used; it being simply, in common form, a suit against the Planters' Insurance Company,-- whether a corporation or a partnership is not stated. The declaration does aver that the defendant is 'a corporation organized and existing under the laws of the state of Tennessee, and having its principal office or place of business at Memphis, in said last-named state, and which has been duly summoned of a plea of trespass on the case upon promises, ' etc.; but nowhere is it even hinted that the defendant, so shown to be beyond the jurisdiction of the state, is 'doing business' within it. The statement of the cause of action does not aid us in the least. It is not shown, even, that the plaintiff, or the firm of which he was receiver, were citizens of Illinois, nor that the policy was executed or delivered there, nor that there was the least connection between the transaction and the state of Illinois, or persons within it, before or since, except the bare fact of the suit itself. The policy is set out in haec verba in the declaration; and if we may look to this, which is doubtful, it appears to have been on its face a Tennessee contract, for it is stated to have been signed and sealed in the city of Memphis, and there is absolutely nothing to show but that all parties to it were in Memphis at the time. The property insured was in the state of Minnesota, so that we are without the least trace of any fact to show that the defendant company had, either in this particular transaction or any other, the least possible relation to the state of Illinois.

The judgment of the court is equally barren. It is a judgment by default, and the assessment of...