Kinsler v. Casualty Company of America

• Decision Date: 27 March 1919
• Docket Number: 20644
• Parties: JAMES C. KINSLER, APPELLANT, v. CASUALTY COMPANY OF AMERICA, APPELLEE: JESSE S. PHILLIPS, INTERVENER, APPELLEE
• Court: Nebraska Supreme Court

172 N.W. 33

103 Neb. 382

JAMES C. KINSLER, APPELLANT, v. CASUALTY COMPANY OF AMERICA, APPELLEE:

JESSE S. PHILLIPS, INTERVENER, APPELLEE

No. 20644

Supreme Court of Nebraska

March 27, 1919

APPEAL from the district court for Douglas county: WILLIAM A REDICK, JUDGE. Affirmed.

AFFIRMED.

James C. Kinsler, pro se.

Morsman Maxwell & Crossman and Crane, Boucher & Sternberg, contra.

ALDRICH J. SEDGWICK, J., not sitting.

OPINION

ALDRICH, J.

The appellee herein is a foreign corporation, with its principal place of business in the city of New York, in the state of New York. The appellant is a resident of the city of Omaha, and he begins this action to recover an attorney fee in the sum of $ 654.73, and attaches and garnishees. One Jesse S. Phillips, insurance commissioner of the state of New York, intervened on the the 4th day of May, 1917, by virtue of section 63 of the general statutes on insurance in the state of New York. The court found for the intervener, and plaintiff appeals.

It is admitted that appellant herein performed the services for which he brings this cause of action. In fine, this is a case where there is no dispute about the facts. The question is: What is the proper application of the law to an admitted situation?

Appellant contends that the Casualty Company of America, appellee, herein, came into the state of Nebraska from its home state of New York to do a general casualty insurance business; that at the time it came here and obtained a license to do business it submitted itself to the laws of the state of Nebraska; that it made a contract with the appellant (a Nebraska lawyer) to perform certain legal services; that, by reason of performing these duties, the appellee became indebted to appellant. This is admitted by appellee. Then in determining the liability here we are met with the proposition: Why the intervention of the insurance commissioner of New York? Can he take over and manage in behalf of the creditors of Nebraska the property of the appellee herein?

The state of New York, under whose authority the insurance commissioner intervenes, gets into this case by a New York statute. He has the power, and it is his statutory duty, to take charge of the insolvent appellee herein, and to administer all of the credits and pay off the indebtedness out of the assets of the insurance company. By virtue of the charter rights of appellee herein, which Nebraska recognizes and accepted, this intervener has the exclusive and absolute title to all property involved the same as though he were an individual owner, and anything that an individual can do in managing his own property this insurance commissioner, intervener herein, can do under and by virtue of its charter rights which it gets from section 63 of the New York statutes. When the intervener became a party by virtue of statute to the case herein, then all the rights, powers and authorities that the casualty company have exercised under its charter, are now subrogated to the intervener herein. In summarizing, then, we say all the rights and interests in every respect have been taken over, and all the titles to property involved, by this intervener, by virtue of statutory authority which Nebraska has recognized and accepted. This New York statute upon which this insurance company is based, and which is a part of its charter, was enacted in the first place for the purpose of liquidating insolvent insurance companies, and this appellee was insolvent and in the hands of the insurance commissioner of New York, the appellee herein, before these attachment proceedings were commenced. The intervener then is here by statutory authority to wind up the affairs of this corporation, and this is the purpose for which the title to the property of the appellee insurance company is taken over, and it is all done for the benefit of creditors. Nebraska recognized this right when it issued a license for this company to do business in this state, and there is nothing to prevent the enforcement of this condition in the state of Nebraska. It follows that every condition and every restriction of the state of New York which gave the power of existence to the appellee herein is now taken over and must be respected and followed by this state. The state of Nebraska, when it issued the license to appellee herein, was charged with notice of the terms and conditions and the basis of authority upon which appellee did business, and thus entering into contract, and performed service for the appellee, was charged also with notice that these contracts and all business done with the company were subject to the fundamental law of its existence, and this charter provision, and it was a condition precedent to its entering business in the state of Nebraska that it was based on section 63 of the New York statute, and this charter went with the company wherever it went and into whatever state it obtained license to do business, and notified the respective state in which it was doing business that, if the company should become insolvent, or neglected to pay its debts, all of the property, assets, and credits of every character should be taken over and become the absolute property of the insurance commissioner of New York. This property and these rights are subject to every provision of its charter right. Then it follows that the insurance commissioner is the trustee of an express trust, and in this capacity and this...