Johnston v. Trade Ins. Co.
| Decision Date | 31 March 1882 |
| Citation | 132 Mass. 432 |
| Parties | Josiah L. Johnston v. Trade Insurance Company |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Argued January 11, 1882; January 12, 1882
Suffolk. Contract. The writ, returnable to the Superior Court, described the plaintiff as of Wilmington in the county of Newcastle in the State of Delaware, and the defendant as a corporation duly established by law in Camden in the State of New Jersey, having a usual place of business in Boston in this Commonwealth. The declaration alleged that the defendant issued a policy of insurance against loss by fire to James E Price on property situated in the State of Delaware, payable to the plaintiff as mortgagee; that a loss had occurred to the amount of $ 1250, and that the defendant refused to pay the same. The return of the officer set forth that he had summoned the defendant to appear and answer "by delivering to J. L. Clarke, insurance commissioner and the duly appointed attorney to accept service for said company, a summons, together with an attested copy of this writ."
The defendant appeared specially and moved that the process against it be quashed, the service thereof annulled, and the writ be dismissed for want of legal service upon it, and for want of jurisdiction in the court to entertain the process.
Putnam J. overruled the motion; and the defendant alleged exceptions, which, in addition to the matters appearing on the face of the papers and above set forth, stated that the defendant had complied with the laws of this Commonwealth in reference to foreign insurance companies, and was doing business in Boston as a foreign insurance company.
The defendant was subsequently defaulted, and judgment rendered against it.
Exceptions overruled.
J. P. Treadwell, for the defendant, cited Osborne v. Shawmut Ins. Co. 51 Vt. 278; Gibbs v. Queen Ins. Co. 63 N.Y. 114; Bawknight v. Liverpool Ins. Co. 55 Ga. 194; Ex parte Schollenberger, 96 U.S. 369, 377.
C. T. Russell & C. T. Russell, Jr., for the plaintiff.
It has been decided in this Commonwealth, that one foreigner may sue another in our courts upon a simple contract debt made without our jurisdiction, if the defendant is found here and process can be legally served upon him. Roberts v. Knights, 7 Allen 449. Peabody v. Hamilton, 106 Mass. 217. Barrell v. Benjamin, 15 Mass. 354.
In the case at bar, the plaintiff is a citizen of Delaware, and the defendant is a corporation established by the laws of New Jersey; and the action is brought upon a policy of insurance issued in Pennsylvania upon property in Delaware, and payable to the plaintiff as mortgagee. The defendant, at the time of the service, had a usual place of business in Boston, and was doing business there as a foreign insurance company, and had complied with the laws of this Commonwealth in relation to foreign insurance companies. St. 1878, c. 36. See Gen. Sts. c. 58, § 68. The St. of 1878 provides that a foreign insurance company shall, before doing business in this Commonwealth, appoint in writing the insurance commissioner of the Commonwealth its attorney, "upon whom all lawful processes, in any action or proceeding against the company, may be served with like effect as if the company existed in this Commonwealth." No question is made that process in this case was duly served upon the attorney of the defendant; but the defendant contends that the court will not, in the absence of express statute authority, entertain jurisdiction of an action between a non-resident plaintiff and a foreign insurance company doing business in this State, upon a contract made out of the State and insuring property in another State, where no attachment has been made, and no service had except upon the insurance commissioner.
Whatever may be the limitations of this statute in respect to foreign insurance companies, after they have appeared in court in obedience to lawful process, there can be no doubt that, if they do business in this State and have complied with the provisions of the statute, they are within the jurisdiction of our courts, and can be held to answer in suits upon contracts which are transitory in their nature, and which ordinarily may be enforced wherever the defendant may be found. The statute simply provides for service of process, which shall, by the consent of the company, have the same force and validity as if made on the company itself; and, when the service is actually made, the...
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