Lewis v. International Ins. Co.
Decision Date | 23 November 1916 |
Docket Number | 3 Div. 231 |
Citation | 198 Ala. 411,73 So. 629 |
Parties | LEWIS v. INTERNATIONAL INS. CO. |
Court | Alabama Supreme Court |
Rehearing Denied Dec. 30, 1916
Appeal from City Court of Montgomery; C.P. McIntyre, Judge.
Suit by B.J. Lewis against the International Insurance Company. Judgment of nonsuit, and plaintiff appeals. Reversed and remanded.
Hamilton & Crumpton, of Evergreen, and Rushton, Williams & Crenshaw of Montgomery, for appellant.
Steiner Crum & Weil, of Montgomery, for appellee.
Suit on a fire insurance policy issued by the defendant company to plaintiff in Geneva county. The defendant appeared and pleaded specially in abatement of the suit (which was brought in the city court of Montgomery) that the contract sued on was made in Geneva county, and "at that time, since, and to the time of the filing of said suit this defendant was a corporation, and at the time mentioned was not doing business by agent or otherwise in Montgomery county, Ala."
On demurrer to the plea being overruled, plaintiff filed a replication thereto, setting up in substance that at the time the cause of action arose and at the time of the institution of this suit defendant was not engaged in business in Geneva county and had ceased to do business in the state of Alabama that the insurance commissioner of the state of Alabama whose residence was in Montgomery, was the true and lawful attorney for the defendant, upon whom all lawful process in any legal proceeding against it might be served, as provided by section 4560, Code 1907. Demurrer to the replication was sustained, and on motion of plaintiff nonsuit was entered.
The question of prime importance on this appeal arises upon the sufficiency of this replication. It discloses that the plaintiff rests the question of jurisdiction and venue on the provisions of said Code section, which reads as follows:
The replication shows that the defendant has ceased to do business in this state, and that the insurance commissioner, who, by virtue of the above cited statute, is the true and lawful attorney of the defendant company, resides in the city of Montgomery.
The validity of the said statute is conceded by counsel for appellee in brief. Legislative enactments of like character have met with the approval of both the state and federal courts, as will appear from an examination of the following authorities: Magoffin v. Mut. L. Ass'n, 87 Minn. 260, 91 N.W. 1115, 94 Am.St.Rep. 699; Woodward v. Mut., etc., Co., 178 N.Y. 485, 71 N.E. 10, 102 Am.St.Rep. 519; Mut. Reserve Ass'n v. Phelps, 190 U.S. 147, 23 Sup.Ct. 707, 47 L.Ed. 987; Conn. Mut. L.I. Co. v. Spratley, 172 U.S. 602, 19 Sup.Ct. 308, 43 L.Ed. 569; Hill v. Empire, etc., Co. (C.C.) 156 F. 797; Hunter v. Mut., etc., L.I. Co., 184 N.Y. 136, 76 N.E. 1072, 30 L.R.A. (N.S.) 677, and note, 6 Ann.Cas. 291.
The above-quoted statute provides that the authority of the insurance commissioner as attorney in such cases shall continue in force irrevocably as long as any liability of the company remains outstanding in this state. It is clear that the Legislature intended by the above language to provide a way by which suits could be maintained on contracts made by insurance companies, even when such companies had ceased to do business in the state. Speaking of a similar statute of the state of Kentucky, the Supreme Court of the United States, in the case of Mut. Reserve Ass'n v. Phelps, 190 U.S. 158, 23 Sup.Ct. 709, 47 L.Ed. 987, said:
The Minnesota court, in Magoffin v. Mut. Reserve Ass'n, 87 Minn. 260, 91 N.W. 1115, 94 Am.St.Rep. 701, discussing a statute of that state, said:
To like effect is the language of the New York Court of Appeals in Woodward v. Mut. Reserve L.I. Co., 178 N.Y. 485, 71 N.E. 10, 102 Am.St.Rep. 521, wherein is found the following:
"When defendant commenced issuing policies in that state after having complied with the conditions of the statute, its obligations toward its policy holders in that regard were precisely the same as if its promises to the state had been incorporated in the policies, and thereafter, whether the company continued to do business in the state or not, policy holders could commence actions by service of process upon the secretary of state."
It seems to have been the insistence of counsel for appellee that, conceding the validity of Code, § 4560, its provisions were intended merely to affect the question of jurisdiction, and not that of venue, and that, if appellee is suable in Alabama, the suit cannot be maintained in Montgomery county, for the reason that it is not now doing business in said county. This insistence is based on the provisions of section 232 of the state Constitution, together with section 6112 of the Code. The portion of section 232 here pertinent reads as follows:
And the Code section in point referred to provides that:
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