Hildebrand v. United Artisans

• Decision Date: 30 January 1905
• Citation: 79 P. 347,46 Or. 134
• Parties: HILDEBRAND v. UNITED ARTISANS.
• Court: Oregon Supreme Court

79 P. 347

46 Or. 134

HILDEBRAND v. UNITED ARTISANS.

Supreme Court of Oregon

January 30, 1905

Appeal from Circuit Court, Douglas County; J.W. Hamilton, Judge.

Action by Robert Hildebrand, by his guardian, S.J. Culver, against the United Artisans, a corporation. From a judgment for plaintiff, defendant appeals. Reversed.

P.L. Willis, for appellant.

John T Long, for respondent.

PER CURIAM.

This is an action by a minor, instituted by his guardian in the circuit court for Douglas county, against a private corporation, having its principal place of business in Multnomah county, to recover upon a benefit certificate issued by it, stipulating to pay plaintiff the sum of $1,900 in case of his father's death. The complaint alleges that the defendant was organized under the laws of this state, and is engaged therein in mutual life insurance on the assessment plan; that in conducting its business it constituted at Roseburg, Or., a lodge, known as "Umpqua Assembly, No 105"; that in consideration of the payment by plaintiff's father of the fees and charges prescribed and of his compliance with the defendant's rules and regulations, it "there executed and delivered" to him a contract of insurance, a copy of which is set out whereby he became a member in good standing in that assembly and entitled to all the rights, benefits, and privileges of membership in the defendant corporation; that plaintiff's father, having fully complied with all the conditions required of him by it, died November 18, 1903; and that due proof of his death was made to the defendant within the time prescribed, but for more than 60 days thereafter it declined and now refuses, to pay any part of the sum named in the certificate. A summons was issued, and the sheriff of Douglas county certifies, in his return indorsed thereon, that he served it in that county upon the within-named defendant, the United Artisans, by delivering a true copy thereof, prepared and certified to by him, and also a copy of the complaint prepared and certified to by one of plaintiff's attorneys to Minnie Jones, the secretary of Umpqua Assembly, No. 105, and agent of the defendant corporation; and that the reason he made the service upon her was because the president or other head of the corporation, secretary, cashier, or managing agent thereof, did not reside or have an office in Douglas county. The defendant's attorney, appearing specially, moved to set aside the service of the process on the ground that the court did not have jurisdiction of the body of the defendant; supplementing the motion by his affidavit, and that of the defendant's managing agent, to the effect that such service was not made upon its agent. A counter affidavit was filed by plaintiff's attorney, in which he sets out what purport to be the duties of a secretary of a subordinate assembly of the defendant corporation. Based on the showing thus made, the court refused to quash the service, and, for want of an answer or other pleading, rendered judgment against the defendant for the sum demanded, and it appeals.

The statute regulating the manner of securing jurisdiction of the person of a defendant is as follows: "The summons shall be served by delivery of a copy thereof, together with a copy of the complaint prepared and certified by the plaintiff, his agent or attorney, or by the county clerk, as follows: (1) If the action be against a private corporation, to the president or other head of the corporation, secretary, cashier, or managing agent, or in case none of the officers of the corporation above named shall reside or have an office in the county where the cause of action arose, then to any clerk or agent of such corporation who may reside or be found in the county, or if no such officer be found, then by leaving a copy thereof at the residence or usual place of abode of such clerk or agent." B. & C.Comp. § 55. The affidavit of plaintiff's counsel states that Minnie Jones, as secretary of Umpqua Assembly, No. 105, of the United Artisans, was required to remit all moneys to the supreme assembly; to notify the supreme secretary when the death of a benefit member occurs, and to see that all blanks for proof of death are promptly filled out and returned to the supreme secretary; and semiannually to make a report of all members in good standing, and of other items of interest. The affidavits of defendant's counsel and of its managing agent fail to state any facts from which the conclusion can be deduced that Minnie Jones was not an agent of the defendant. They are simply to the effect that she was not its agent or representative, and are nothing more than mere expressions of opinion, not amounting to the specifications of probative facts from which her authority, or want thereof, is to be determined. The question of agency is to be ascertained by considering the business transacted for, and the acts performed by, one person for another, with his previous authorization or subsequent knowledge and approval. Upon the proof of these facts, the conclusion is reached whether or not the agency existed at the time relied upon. This deduction is based upon evidence of the facts adverted to, and cannot be made to depend upon the opinions of witnesses, for that would be delegating to them the duty devolving upon the court.

Where the regulations of an association having a benefit department require the secretary of each local division to certify to the health of every applicant for insurance, to keep a correct list of the members of the benefit department, and to place therein the name of any member of an insurance department joining his division by transfer from any other division, such secretary is an agent of the association. Dixon v. Order of Railway Conductors of America (C.C.) 49 F. 910. In deciding that case, the court referring to...