In re State ex rel. Standard Fire Insurance Company of Hartford, Connecticut v. Gantt
| Decision Date | 17 May 1918 |
| Parties | In Matter of the STATE ex rel. STANDARD FIRE INSURANCE COMPANY of Hartford, Connecticut, v. ERNEST D. GANTT, Judge of Circuit Court |
| Court | Missouri Supreme Court |
Writ denied.
Leahy Saunders & Barth for relator.
(1) The title to the Act of 1885, is in conflict with both sections 28 and 34, article 4, of the Constitution, because this title indicates an amendment, whereas the act itself is a repeal. (2) Sec. 7042, R. S. 1909, assuming it to be constitutional must be construed in pari materia with the other service statutes, as was done in the dissenting opinion in the case of Julian v. Kansas City Star, 209 Mo. 35, 97, which became the law in the case of Houston v. Pulitzer Company, 249 Mo. 332, and as was done in the recent case of State ex rel v. Jones, 192 S.W. 980. There is nothing in the language of section 7042 authorizing service of process upon the Superintendent of Insurance "in all proceedings that may be instituted against such company in any court of this State or in any court of the United States in this State" which says that such company may be sued in any county or city of the State, no matter where the plaintiff may reside and no matter where the cause of action may accrue. This statute, construed with the other familiar service statutes, means that process may be served in the manner provided from any court of competent jurisdiction, and the history of the statute shows that the optional jurisdiction, now contended for, was never intended. (3) If section 7042 is constitutional and must be construed as contended by respondent in this case as giving a local plaintiff in a case of this character the unrestricted right to select a forum anywhere in Missouri, then it is clearly in conflict with the due process-of-law clause, section 30 article 2 of the Constitution of Missouri, and section 1 of the Fourteenth Amendment to the Constitution of the United States, and also with section 10, article 2 of the Missouri Constitution, declaring that "certain remedy" must be "afforded for every injury to person, property or character," and also in conflict with section 53 article 4, of the Constitution of Missouri, providing: "The General Assembly shall not pass any local or special law . . . (4) changing the venue in civil or criminal cases." Tel. Co. v. Kansas, 216 U.S. 1; Railway v. Green, 216 U.S. 400; Railroad v. O'Connor, 223 U.S. 280; Williams v. Talladega, 226 U.S. 404; Remedy Co. v. Cope, 235 U.S. 197. A foreign corporation is a "person" within the meaning of the Fourteenth Amendment, and entitled to due process of law and the equal protection of the laws. Santa Clara County v. Railway, 118 U.S. 394; Railroad v. Ellis, 165 U.S. 154.
Fauntleroy, Cullen & Hay for respondent.
(1) The argument that the circuit court of Audrain county has no jurisdiction because of inconvenience and great distance from the scene of the fire has been thoroughly exploded by Gold Issue Company v. Fire Ins. Co., 267 Mo. 524. Fire Ins. Co. v. Gold Issue Co., 37 U.S. S.Ct. 344; Mondou v. Railroad, 223 U.S. 1; Bradbury v. Railroad, 149 Iowa 51. (2) The statutes as construed are not unconstitutional. A mere direction of a state law that under given circumstances a cause should be tried at one forum instead of another can have no tendency to violate the guarantee of the equal protection of the law, where in both forums the equality of law governs and the equality of administration prevails. St. Ry. Co. v. Snell, 193 U.S. 37. Classification of insurance companies separately from other corporations is not so arbitrary and destitute of reasonable basis as to be obnoxious to constitutional objections. Life Assn. v. Mettler, 185 U.S. 208. The law has been construed so that an insurance company could be sued in any county for more than a quarter of a century and the insurance company agreed to such procedure. Ins. Co. v. French, 18 How. 404; Railroad v. Harris, 12 Wall. 81; Ex parte Schollenberger, 96 N. S. 369; St. Clair v. Cox, 106 U.S. 350; Min. Co. v. Pennsylvania, 125 U.S. 181; Heat Co. v. Clow & Sons, 204 U.S. 289. The rule applies with greater force when, as in the instant case, the company has voluntarily appointed an agent to receive and accept service, and this is emphasized and made plain by the decision of the Supreme Court of the United States in the Gold Issue case, 37 S.Ct. 344. Where a constitutional provision is designed for the protection solely of the property rights of a citizen it is competent for a party to waive the protection and to consent to such action as would be invalid if taken against his will, and the insurance company, by filing its power of attorney, applying for and accepting license from the State of Missouri, and doing business in the State of Missouri, most effectually waived any constitutional objection it otherwise might have to the statute in question. Ashley v. Ryan, 153 U.S. 436; Railway v. Osborne, 193 U.S. 29; Interstate Ry. Co. v. Mass., 207 U.S. 79; Daniels v. Tearney, 102 U.S. 421. (3) The Gold Issue case, supra, is decisive of every point urged by relator. (4) If a foreign insurance company authorized to do business in this State be deemed a resident of every county in the State for the purpose of service, then under the first subdivision of section 1751, it is subject to suit in any county, because every county is the "county of defendant's residence." If a foreign insurance company be deemed a non-resident within the meaning of the process statutes, then the place of suit is governed by the fourth subdivision of section 1751, which provides that "when all the defendants are nonresidents, suit may be brought in any county in the State." The foreign insurance company is, for the purpose of service, a resident of each county. (5) Foreign insurance companies must be classed as either residents or non-residents within the meaning of the venue statutes. If they are classed as residents, then they may be sued in any county in the State. If we give no force and effect to section 7042 and give no force and effect to the first clause of section 1751, yet we are bound to consider the fourth clause of section 1751, and if foreign insurance companies are classed as non-residents, then it necessarily follows, by virtue of the fourth subdivision of said section, that they are subject to suit in any county in the State, because they are non-residents. So it matters not in this proceeding, whether they are classed as residents or nonresidents, the inevitable conclusion is that they are subject to suit in any county in the State. Suits against non-residents may be brought in any county in the State. Sec. 1751, R. S. 1909; Baisley v. Baisley, 113 Mo. 549; Greeley v. Railroad, 123 Mo. 157; Gabriel v. Mullen, 111 Mo. 119; Accident Co. v. Reisinger, 43 Mo.App. 576. The fact that a foreign corporation is licensed to do business in a State other than that of its incorporation does not domesticate it. It is a non-resident of every State except that which granted its charter. Constitution, art. 2, sec. 10; Secs. 1751, 1754, R. S. 1909; Herryford v. Ins. Co., 42 Mo. 148; Stanley v. Railroad, 62 Mo. 511; Ex parte Schollenberger, 96 U.S. 377; Railroad v. Estill, 147 U.S. 593.
OPINION
In Banc.
Prohibition.
This is an original proceeding by prohibition, whereby it is sought to prohibit respondent, as judge of the circuit court of Audrain County, from taking further action in a certain cause wherein the St. Louis Carbonating & Manufacturing Company is plaintiff, and relator herein is defendant.
The facts necessary to an understanding of the points involved are few and simple, and run substantially thus: The said St. Louis Carbonating & Manufacturing Company (hereinafter, for brevity, called "Carbonating Company") is a Missouri corporation, having its principal office and place of business in the city of St. Louis. At and prior to the 22nd day of May, 1917, the Carbonating Company held a policy of fire insurance in the relator company, for the sum of $ 1000, which policy insured for one year certain property of the Carbonating Company, located in the city of St. Louis. This property so covered by the insurance policy aforesaid, was on the date stated above damaged by fire. Thereafter, and upon relator's refusal to pay the sum set out in said policy of insurance, plaintiff brought suit thereon in the circuit court of Audrain County, Missouri. Summons in said action was issued out of the Audrain County Circuit Court, sent to the sheriff of Cole County, and by said sheriff served upon W. K. Chorn, Superintendent of the Insurance Department of the State of Missouri.
Thereafter, and on the 3rd day of September, 1917, relator, who was the defendant in the insurance action, filed in the circuit court of Audrain County what it denominates a special entry of appearance for the purpose of excepting to the jurisdiction of that court, and a motion to quash service and dismiss the cause for want of such jurisdiction.
Pertinent parts of relator's said motion, which more adequately and correctly than any mere excerpt therefrom would do, state relator's position and the precise nature of its attack upon the jurisdiction of the Audrain Circuit Court, read thus:
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