Insurance Company v. Morse

CourtUnited States Supreme Court
Writing for the CourtHUNT
Citation87 U.S. 445,20 Wall. 445,22 L.Ed. 365
PartiesINSURANCE COMPANY v. MORSE
Decision Date01 October 1874

87 U.S. 445
22 L.Ed. 365
20 Wall. 445
INSURANCE COMPANY
v.
MORSE.
October Term, 1874

ERROR to the Supreme Court of Wisconsin; the case being thus:

A statute of Wisconsin, passed in 1870,1 enacts as follows:

'It shall not be lawful for any fire insurance company, association, or partnership, incorporated by or organized under the laws of any other State of the United States, or any foreign government, for any of the purposes specified in this act, directly or indirectly to take risks or transact any business of insurance

Page 446

in this State, unless possessed of the amount of actual capital required of similar companies formed under the provisions of this act; and any such company desiring to transact any such business as aforesaid by any agent or agents, in this State, shall first appoint an attorney in this State on whom process of law can be served, containing an agreement that such company will not remove the suit for trial into the United States Circuit Court or Federal courts, and file in the office of the secretary of state a written instrument, duly signed and sealed, certifying such appointment, which shall continue until another attorney be substituted.'

This statute being in force, the Home Insurance Company of New York, a corporation organized under the laws of the State of New York, and having its office and principal place of business in the city of New York, being desirous of doing business in the State of Wisconsin, established an agency there, and in compliance with the provisions of the above-quoted statute, filed in the office of the secretary of state of Wisconsin an appointment of H. S. Durand as their agent in it, on whom process might be served. The power of attorney thus filed contained this clause:

'And said company agrees that suits commenced in the State courts of Wisconsin shall not be removed by the acts of said company into the United States Circuit or Federal courts.'

Being thus established in the State, the company issued a policy of insurance to one Morse, and a loss having occurred, as was alleged, under it, Morse sued the company in the County Court of Winnebago, one of the State courts of Wisconsin, to recover the amount alleged to be due on the policy. The company entered its appearance in the suit and filed its petition to remove the case, under the twelfth section of the Judiciary Act of 1789, into the Circuit Court for the district. The section under which the company filed its petition for removal is in these words:

'If a suit be commenced in any State court . . . by a citizen of the State in which the suit is brought against a citizen of another State, . . . and the defendant shall at the time of entering

Page 447

his appearance in such State court, file a petition for the removal of the cause for trial into the next Circuit Court to be held in the district where the suit is pending . . . and offer good and sufficient surety for his entering in such court on the first day of its session copies of said process against him, and also for his there appearing, . . . it shall then be the duty of the State court to accept the surety and proceed no further in the cause.'

The petition was in proper form and was accompanied by the required bond and bail.

The State court of Wisconsin in which the suit was brought held that the statute above quoted, of the State, and the agreement under it justified a denial of the petition to remove the case into the Circuit Court of the United States; and a trial having been had, gave judgment for the plaintiff on a verdict found in his favor. A similar view as to the effect of the statute of the State and the agreement under it, was taken by the Supreme Court of Wisconsin, and the judgment was there affirmed.2 Thereupon the insurance company brought the case here; and whether the statute and the agreement were sufficient to justify the refusal to remove the case was the point now presented for consideration.

The Constitution of the United States ordains as follows:

'This Constitution and the laws of the United States which shall be made in pursuance thereof . . . shall be the supreme law of the land; and the judges in every State shall be bound thereby; anything in the constitution or laws of any State to the contrary notwithstanding.

'The judicial power of the United States . . . shall extend to . . . controversies between citizens of different States.'

The case was twice argued.

Mr. J. W. Cary, in support of the judgment below:

That corporations created by the laws of one State have

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not the absolute right to recognition, and to do business in another State, is not a subject for argument; the question has been adjudicated by this court.

In the recent case of Paul v. Virginia,3 this court, speaking through Field, J., says:

'Having no absolute right of recognition in other States, but depending for such recognition and the enforcement of its contracts upon their assent, it follows, as a matter of course, that such assent may be granted upon such terms and conditions as those States may think proper to impose. They may exclude the foreign corporation entirely, they may restrict its business to particular localities, or they may exact such security for the performance of its contracts with their citizens as in their judgment will best promote the public interest.'

This case did but recognize what Taney, C. J., had expressed in behalf of the court in Bank of Augusta v. Earle,4 and what Curtis, J., said equally for it in The Lafayette Insurance Company v. French.5

If, therefore, a State corporation has no rights in States other than in the one in which created, except 'by the permission, express or implied, of those States,' and if a State has an absolute right to prohibit a foreign corporation from doing business within its limits, it follows of necessity that when a State grants permission to do business, to a foreign corporation, it has a right to impose such terms and conditions as it may see fit. The only point, therefore, upon the question of removal is whether the contract or stipulation required by the statute of Wisconsin of 1870 inures to the State alone, or inures to both the State and to each policyholder.

The provision is for the benefit of the assured, and inserted for a beneficent purpose, to wit: to give to the assured a certain remedy without delay. It meant to prevent him from being compelled to go a great distance from his home to assert his claims, and that if he wishes a writ of error or an appeal to what is decided against him he shall not be subjected

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to the expense of coming to this high court in Washington; a court often at a very great distance from the suitor, and where of necessity he is often subjected to great delay and to great cost. These foreign companies say to the State, 'We wish to do business in your State.' The State replies: 'If we permit you to do business here and any of our people suffer a loss, you can, under existing laws, subject them, if you refuse to pay, to the great inconvenience of going a long distance from their homes to enforce their rights. However, we will give our consent to your doing business here provided you will agree to waive your rights under a certain act of Congress, which, in controversies between citizens of different States gives to the defendant a right to be heard in the Federal courts, and will consent that all litigation shall be in our courts, the courts of our State.' The companies answer, 'We consent.' And with such understanding they are permitted to do business, and now they assert that they are not bound by the agreement!

It is well settled that a party cannot be allowed to take benefits and at the same time repudiate obligations. The legislature was granting a favor. It could impose its own conditions, it matters not how much those conditions might conflict with the legal or constitutional rights of these companies.6

This contract of insurance in the present case was made under the law in question. A contract made under a law is presumed to be made in reference to it; for the law of every State where a contract is made enters into and makes part of the contract.7 Under the provisions of this law the status of the assured and insurer is the same as if the company had put an express condition in the policy that the insurer should not remove an action upon it from the State to the Federal courts.

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The only question, as we have before stated, is whether the contract is with both assured and the State, or with the State alone. That is a question which it belongs to the Supreme Court of Wisconsin to decide, and not to the courts of the United States.

Messrs. W. M. Evarts and H. M. Finch, contra.

Mr. Justice HUNT delivered the opinion of the court.

The refusal of the State court of Wisconsin to allow the removal of the case into the United States Circuit Court of Wisconsin, and its justification under the agreement of the company and the statute of Wisconsin form the subject of consideration in the present suit.

The State courts of Wisconsin held that this statute and their agreement under it justified a denial of the petition to remove the case into the United States court. The insurance company deny this proposition, and this is the point presented for consideration.

Is the agreement thus made by the insurance company one that, without reference to the statute, would bind the party making it?

Should a citizen of the State of New York enter into an agreement with the State of Wisconsin, that in no event would he resort to the courts of that State or to the Federal tribunals within it to protect his rights of property, it could not be successfully contended that such an agreement would be valid.

Should a citizen of New York enter into an agreement with the State of Wisconsin, upon whatever consideration, that he would in no case, when called into the courts of that...

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228 practice notes
  • Koslow v. Commonwealth of Pennsylvania, No. 01-2782.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • August 21, 2002
    ...the constitution and laws of the United States, the statute requiring the permit must be held to be void."); Home Ins. Co. v. Morse, 20 Wall. 445, 87 U.S. 445, 458, 22 L.Ed. 365 (1874) ("The Constitution of the United States secures to citizens of another State than that in which ......
  • In re Unterweser Reederei, GMBH, No. 27497.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • June 19, 1970
    ...courts' generally negative attitude toward forum clauses. Home Insurance Company of New York v. Morse, 1874, 20 Wall. (87 U.S.) 445, 22 L.Ed. 365, 368, concluded that the authorities showed "agreements in advance to oust the courts of jurisdiction conferred by law to be illegal and voi......
  • Leaman v. Ohio Dept. of Mental Retardation & Development Disabilities, No. 85-3471
    • United States
    • U.S. Court of Appeals — Sixth Circuit
    • July 23, 1987
    ...violations of such rights may not be compromised or waived. See Home Insurance Company of New York v. Morse, 87 U.S. (20 Wall.) 445, 451, 22 L.Ed. 365 (1874) ("... any citizen may no doubt waive the rights to which he may be entitled"). And the long line of cases holding that a st......
  • McCullough v. Clinch-Mitchell Const. Co., No. 9810.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • May 22, 1934
    ...of cases announcing the rule that agreements which oust the jurisdiction of the courts are invalid see Home Insurance Co. v. Morse, 20 Wall. 445, 22 L. Ed. 365; Robert Grace Contracting Co. v. C. & O. N. R. Co., 281 F. 904, 905 (C. C. A. 6); Mitchell v. Dougherty, 90 F. 639 (C. C. A. 3)......
  • Request a trial to view additional results
227 cases
  • Koslow v. Commonwealth of Pennsylvania, No. 01-2782.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • August 21, 2002
    ...it by the constitution and laws of the United States, the statute requiring the permit must be held to be void."); Home Ins. Co. v. Morse, 20 Wall. 445, 87 U.S. 445, 458, 22 L.Ed. 365 (1874) ("The Constitution of the United States secures to citizens of another State than that in which suit......
  • In re Unterweser Reederei, GMBH, No. 27497.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • June 19, 1970
    ...courts' generally negative attitude toward forum clauses. Home Insurance Company of New York v. Morse, 1874, 20 Wall. (87 U.S.) 445, 22 L.Ed. 365, 368, concluded that the authorities showed "agreements in advance to oust the courts of jurisdiction conferred by law to be illegal and void". T......
  • Leaman v. Ohio Dept. of Mental Retardation & Development Disabilities, No. 85-3471
    • United States
    • U.S. Court of Appeals — Sixth Circuit
    • July 23, 1987
    ...violations of such rights may not be compromised or waived. See Home Insurance Company of New York v. Morse, 87 U.S. (20 Wall.) 445, 451, 22 L.Ed. 365 (1874) ("... any citizen may no doubt waive the rights to which he may be entitled"). And the long line of cases holding that a state may no......
  • McCullough v. Clinch-Mitchell Const. Co., No. 9810.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • May 22, 1934
    ...of cases announcing the rule that agreements which oust the jurisdiction of the courts are invalid see Home Insurance Co. v. Morse, 20 Wall. 445, 22 L. Ed. 365; Robert Grace Contracting Co. v. C. & O. N. R. Co., 281 F. 904, 905 (C. C. A. 6); Mitchell v. Dougherty, 90 F. 639 (C. C. A. 3); an......
  • Request a trial to view additional results

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