Johnson v. Fire Ass'n of Philadelphia
| Decision Date | 05 December 1949 |
| Docket Number | No. 21257,21257 |
| Citation | 240 Mo.App. 1187,225 S.W.2d 370 |
| Parties | JOHNSON v. FIRE ASS'N OF PHILADELPHIA. |
| Court | Missouri Court of Appeals |
Jayne & Jayne, Kirksville, for appellant.
L. F. Cottey, Lancaster, Allen Rolston, Lancaster, for respondent.
This is a suit on a cargo liability insurance policy. The plaintiff was a resident of Iowa, engaged in hauling livestock and other freight by truck. The defendant, insurance company, was a Pennsylvania corporation authorized to do business in the States of Iowa and Missouri. Plaintiff purchased a cargo liability policy from defendant in Iowa, and it is admitted it is an Iowa contract. On March 31, 1947, he contracted to transport certain livestock from Wapello County, Iowa, to one Henson, who lived in Schuyler County, Missouri. The animals were loaded into a truck, and while plaintiff was proceeding along the highway in the state of Iowa, the truck overturned, killing one calf of the approximate value of $50, and injuring others. When plaintiff delivered the cattle to Henson he was promptly sued in Schuyler County for damage to the cattle. Personal service was obtained in that county. Plaintiff notified the defendant insurance company of said suit and the company declined to defend the case. He employed an attorney and that suit was tried, resulting in a judgment against Johnson (the plaintiff in this case) for $350 and court costs. Thereafter, Johnson filed this suit in Schuyler County, Missouri, against the insurance company on its policy to recover the amount of the above judgment, his attorneys' fees, and damages for vexatious refusal to pay. The only service of process on the defendant was secured by service on the Superintendent of Insurance of Missouri.
The defendant appeared specially and filed a motion challenging the jurisdiction of the court over the subject matter and of the defendant; it also charged improper venue. The motion was overruled and defendant filed answer generally denying liability and pleading certain provisions of the policy as affimative defenses, and also tendered into court the sum of $50 and costs in full settlement of plaintiff's claim. A jury was waived and the cause tried by the court, resulting in a judgment for the plaintiff in the sum of $400, from which the defendant has appealed.
The first assignment of error challenges the jurisdiction of the court over the subject matter and over the person of defendant; and also challenges the venue of the suit. We shall discuss this assignment first, because, if it is valid, then there is no need to discuss the merits of the case.
Plaintiff relies upon Sec. 6005, R.S.1939, Mo.R.S.A., to support his contention that, under the facts in this case, the service of process upon the Superintendent of Insurance of Missouri gave the court jurisdiction of the subject matter and of the defendant. This section provides for service of process on nonresident insurance companies licensed to do business in this state in certain causes of action. The pertinent part provides that the service of process on the Superintendent of Insurance '* * * shall be valid and binding * * * in all actions brought by nonresidents of this state upon any policy issued in this state in which such nonresident is named beneficiary or which has been assigned to such nonresident and in all actions brought by nonresidents of this state on a cause of action, other than an action on a policy of insurance, which arises out of business transacted, acts done, or contracts made in this state.' The italicized language is applicable to the facts in this case, because the policy was not issued 'in this state', and the plaintiff is a nonresident.
This section prescribes the exclusive method for service of process on foreign insurance companies licensed to transact business in Missouri. State ex rel. Equitable Life Assurance Soc. v. Allen et al., 345 Mo. 671, 136 S.W.2d 309; State ex rel. Phoenix Life Ins. Co. v. Harris, 343 Mo. 252, 121 S.W.2d 141, 119 A.L.R. 862; Johnston v. Progressive Life Ins. Co., Mo.App. 192 S.W.2d 649; McNabb v. National Liberty Ins. Co., Mo.App., 188 S.W.2d 523. In the Allen case, 136 S.W.2d 311, the court also holds that this Section [345 Mo. 671, 136 S.W.2d 311] (Italics ours). The Harris and Allen cases were discussing Sec. 5894, R.S.1929, which was repealed, Laws 1939, p. 451, and a new section enacted, which is now Sec. 6005; but the observation of the court in those concerning the question of the sole authority for service upon a non-resident insurance company is still applicable.
The opinion in the Harris case reviews the history of Sec. 5894 and many previous decisions construing it, and holds that the suit (under the statute as it then existed) must be based on '(1) a policy issued or a liability incurred in Missouri while the company was licensed to do business here; (2) and (not or) the policy or liability must be outstanding in this state in the sense of being due here.' [343 Mo. 252, 121 S.W.2d 145] That opinion also suggested that the General Assembly clarify Sec. 5894. Thereafter it was repealed at the 1939 session, and what is now Sec. 6005, enacted in lieu thereof.
The above quoted language of Sec. 6005 did not appear in the prior section. The first part of the quoted change now makes it clear that a nonresident may sue upon a policy issued in this state in which he is named a beneficiary or which has been assigned to him. That provision has no application to the instant case. The clause which is applicable, and which gives us concern, is the provision authorizing service upon the Superintendent in all actions brought by nonresidents on a cause of action which arises out of business transacted, acts done, or contracts made in this state, except actions on a policy of insurance. In what kind of actions has the nonresident insurance company authorized its agent, the Superintendent, to receive service? It is conceded the plaintiff and defendant are nonresidents of Missouri, although the defendant is authorized to transact business in this state; it is also conceded that the insurance policy is an Iowa contract. Is the applicable clause of this section broad enough to authorize the plaintiff to file this suit in Missouri and give our courts jurisdiction of the subject matter and the parties under the particular facts present here?
Plaintiff's first contention is that, when the insurance company refused to appear and defend or otherwise protect plaintiff from the legal liability asserted against him by Henson in the original suit, this constituted 'acts done' by the...
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