BONHAM
Chief Justice.
About
the 8th day of July, 1941, the plaintiff, Sherwood Mobley
was the owner of a truck which was being operated by his
agent along a public highway in the State of North Carolina.
At the same time and place, two trucks, the property of
Howard Bland, a resident of Georgia, were being driven by the
servants and employees of the said Howard Bland. The
plaintiff alleges certain acts of negligence by the operators
of the two trucks belonging to Bland, which resulted in one
of said trucks coming into collision with the truck of the
plaintiff. Mobley was then, and is now, a resident of the
County of Dillon, State of South Carolina. He
brought action in the Court of Common Pleas for Dillon County
and attached one of Bland's trucks while it was in that
county.
The
complaint contains the following allegations: "That the
defendant Pennsylvania Casualty Company is a corporation
organized and operated under the laws of one of the States of
the United States and as such is engaged in the writing and
issuance of liability insurance ***. That the defendant
Pennsylvania Casualty Company issued and now has outstanding
its policy or policies of insurance insuring its co-defendant
Howard Bland against loss from any liability imposed by law
on the said defendant Howard Bland for damages resulting
through the operation of said trucks or either
of them, and under said policy or policies the said defendant
Pennsylvania Casualty Company is liable to this plaintiff
along with its co-defendant Howard Bland for the damages
sustained by the plaintiff ***."
Under
this allegation, the Pennsylvania Casualty Company was made a
party defendant, and service was attempted to be had upon it
by serving the summons and complaint upon the Insurance
Commissioner of this State, and thereafter, by serving the
summons and complaint upon an agent of the Casualty Company
in the County of Dillon, in the State of South Carolina.
The
Pennsylvania Casualty Company, appearing solely for that
purpose, made a motion before the Honorable E. C. Dennis,
Presiding Judge, to set aside the service and to dismiss the
complaint in the action for want of jurisdiction upon the
grounds:
"1.
That the cause of action did not arise in South Carolina nor
is the subject of the action situate within this State, and
the defendant is a foreign corporation.
"2.
That it appears from the complaint that the subject of the
action is an alleged tort committed in the State of North
Carolina.
"3.
*** The said Insurance Commissioner has no power to bind the
defendant with respect to the service of process upon a cause
of action of the character described in the complaint based
upon a tort committed outside of the State of South Carolina
and to hold otherwise would deprive this defendant of its
property without due process of law in violation of the Fifth
Amendment to the Constitution of the United States, and deny
to this defendant the equal protection of the laws and
deprive it of its property without due process of law in
violation of the Fourteenth Amendment to the Constitution of
the United States."
The
defendant Casualty Company also demurred to the complaint
upon the following grounds:
"1.
That the complaint shows that the cause of action did not
arise in the State of South Carolina; that the subject of the action is not situate within this State;
that it does not appear that defendant is a corporation
organized under the laws of this State, and since it appears
from the complaint that the alleged delict occurred outside
of the State of South Carolina this Court has no jurisdiction
over this defendant.
"2.
That there is a misjoinder of causes of action in the
complaint, in that it appears that the plaintiff is
undertaking to assert a cause of action against the defendant
Howard Bland arising out of an alleged tort committed in the
State of North Carolina and against this defendant upon an
alleged contract whereby it insured the said Howard Bland
against loss from liability imposed by law on the said Howard
Bland for damages resulting from the operation of the
automobile trucks referred to in the complaint.
"3.
That the complaint fails to state any cause of action against
the defendant, in that it does not appear that plaintiff has
any rights under the policy of insurance issued by this
defendant to the defendant Howard Bland insuring him against
loss from any liability imposed by law."
The
motions to set aside the service upon the Insurance
Commissioner of the State, and upon an agent of the defendant
Casualty Company in Dillon County, South Carolina, were
denied by Judge Dennis, and the demurrer was overruled.
From
the orders refusing to set aside the service and overruling
the demurrer, the defendant, Pennsylvania Casualty Company,
alone appealed upon seven exceptions, which counsel for
appellant have grouped under the three following questions:
"1.
Is a foreign, domesticated insurance company, on a cause of
action arising out of the state, properly served by
delivering
a copy of the summons to one of its local agents in the
state?
"2.
Does the complaint set forth a cause of action on a contract
of, indemnity against liability? (Exception 7)
"3.
Can a suit in tort and one in contract arising
in another state be joined in South Carolina in the face of
foreign statute to the contrary?"
The
issue made by the first question was held by Judge Dennis, in
his decree, to be governed by the decision of this court in
the case of Lipe v. Carolina, C. & O. Railway Company,
123 S.C. 515, on page 523, 116 S.E. 101, on page 103, 30
A.L.R. 248, in which it was held:
"The
conclusive answer to that question is found in section 461 of
the Code of Civil Procedure of 1912 [Section 826 of the Code
of 1932], providing that--
"'An
action against a corporation created by or under the laws of
any other state, government, or country, may be brought in
the circuit court (1) by any resident of this state, for any
cause of action, (2) by a plaintiff not a resident of this
state, when the cause of action shall have arisen, or the
subject of the action shall be situated, within this
state.'
"The
language of the statute, conferring the right upon any
resident to bring an action in the circuit court against a
foreign corporation 'for any cause of action,' and
limiting the right of action of a non-resident, is too clear
to require interpretative comment. The plaintiff, a resident
of the state, was entitled to sue upon her transitory cause
of action arising in the state of North Carolina, and the
circuit court was invested with jurisdiction to try the
cause. Obviously, if the service of process was otherwise
sufficient to give the circuit court jurisdiction of the
person of the defendant, the service was not invalidated or
rendered nugatory by reason of the fact that the
plaintiff's cause of action arose without the
state."
It is
true that the Lipe case, supra, involved "an action
against a corporation created by or under the laws of"
another State, and that case, which was concerned with a
Virginia railroad corporation, properly fell within the terms
of Section 826 of the Code of Laws for 1932.
In the case at bar, we are concerned with a
"foreign insurance company," under Section 7964 of
the Code of Laws of South Carolina for 1932, from which we
quote: "Every foreign insurance company shall, before
being licensed, appoint in writing the insurance commissioner
and his successors in office to be its true and lawful
attorney upon whom all legal process in any action or
proceeding against it shall be served, and in such writing
shall agree that any lawful process against it which is
served upon such attorney shall be of the same legal force
and validity as if served upon the company, and that the
authority shall continue in force so long as any liability
remains outstanding in the State. *** Service shall only be
made upon such attorney, must be in duplicate and shall be
deemed sufficient service upon such company. ***"
The
Lipe case, which did not involve a foreign insurance company,
was, in our opinion, quite properly governed by Section 826
of our Code, for it dealt with a foreign corporation which
was other than a foreign insurance company, and therefore is
entirely distinguishable from the case now under
consideration. Furthermore, the Lipe case was decided in the
year 1923. Even if it should contain any implication that the
manner of service, proper in that case, should apply here,
such implication is overcome by the far more recent case of
Murray v. Sovereign Camp, W. O. W., 192 S.C. 101, 5
S.E.2d 560, which was decided by this court sixteen years
thereafter in the year 1939. We quote from page 108 of that
opinion in 192 S.C., page 562 of 5 S.E.2d: "We hold,
therefore *** that service on foreign insurance companies as
provided for in Section 7964 of the Code of 1932 is
exclusive, and that service made in any other way upon such
corporations is invalid. Any holding or ruling of the Court
in the case of Lucas v. North Carolina Mutual Life
Insurance Company, supra [184 S.C. 119, 191 S.E. 711],
to the contrary is hereby expressly overruled."
And on page 109 of the same opinion in 192 S.C., on
page 563 of 5 S.E.2d, we find: "***, the Courts are
practically uniform in holding in such cases that the method
of service designated in the Statute is exclusive, and that
service may not be had upon any other agent of the
corporation."
In view
of the disposition which we shall make herein of other
questions raised by the appeal, it is not necessary to take
up and...
