Morris & Co. v. Skandinavia Ins. Co.

• Decision Date: 19 October 1931
• Docket Number: 29348
• Citation: 137 So. 110,161 Miss. 411
• Parties: MORRIS & CO. v. SKANDINAVIA INS. CO. et al
• Court: Mississippi Supreme Court

137 So. 110

161 Miss. 411

MORRIS & CO. v. SKANDINAVIA INS. CO. et al

No. 29348

Supreme Court of Mississippi

October 19, 1931

Division A

1 INSURANCE.

Statute requiring foreign insurance companies to appoint insurance commmissioner as agent for service of process does not subject such insurance companies to jurisdiction of state courts in controversies growing out of transactions wholly without state (Code 1930, section 5165).

2. APPEAL AND ERROR.

Constitutional provision respecting reversal of decision for mistake as to whether cause was of equity or common-law jurisdiction held inapplicable, where court sustained demurrer to crossbill (Const. 1890, section 147).

HON. V J. STRICKER, Chancellor.

APPEAL from chancery court of Hinds county HON. V. J. STRICKER Chancellor.

Suit by the state on the relation of J. H. Howie, district attorney, against the Skandinavia Insurance Company and Morris & Company in which Morris & Company filed a cross-bill. From a decree dismissing both the bill and the cross-bill, Morris & Company appeals. Affirmed.

The statutes referred to in the opinion follow:

"5165. Deposit of charter--statement--filing fee.--No foreign insurance, indemnity or guaranty company or other insurer shall be admitted and authorized to do business in this state until: . . .

"Fourth.--It shall appoint as its agent or agents in this state some resident or residents thereof, other than the said commissioner; such appointment to be made in writing, signed by the president and secretary or manager or general agent, and filed in the office of the commissioner, authorizing the agent to acknowledge service of process for and on behalf of the company, and consenting that service of process on the agent shall be as valid as if served upon the company, according to the laws of this state, and waiving all claims of error by reason of such service."

"5166. Companies outside U. S.--deposit required.--No foreign company, if incorporated or organized under the laws of any government, or state, elsewhere than in the United States, shall be admitted until it has made a deposit with the treasurer of the state, or with the financial officer of some other state of the United States, of a sum not less than the capital required of like companies under this chapter. Such deposit must be in exclusive trust for the benefit and security of all the company's policyholders and creditors in the United States, and such deposit shall be deemed for all purposes of the insurance law the capital of the company making it."

Affirmed.

Green, Green & Jackson, of Jackson, and S. C. Mize, of Gulfport, for appellant.

Appellant may sue appellee insurance company, upon this transitory cause of action in Mississippi.

N. O. J. & G. R. R. Co. v. Wallace, 50 Miss. 244; Pullman Co. v. Lawrence, 74 Miss. 800, 22 So. 53; Vicksburg Shreveport & Pacific R. R. Co. v. Forcheimer, 74 So. 419, 113 Miss. 531.

Under Mississippi practice, the dismissal of the original bill does not carry the cross-bill.

Griffith's Chancery Practice, sec. 384; Sigman v. Lundy, 66 Miss. 523, at page 526; Dewees v. Dewees, 55 Miss. 315; Jackson v. Lemler, 83 Miss. 37, at page 42; 21 C. J. 514.

If the insurance company was not subject to suit in Mississippi and no process on this cross-bill could be lawfully served upon defendant insurance company when that service was effected, an election was given to the insurance company (a) of relying upon the invalidity of the service when and after a decree had been thereon taken, or (b) voluntarily appearing and questioning.

York v. Texas, 137 U.S. 19, 34 L.Ed. 604; Kauffman v. Wooters, 138 U.S. 285, 34 L.Ed. 962; Cain v. Commercial Pub. Co., 232 U.S. 124, 58 L.Ed. 534.

That herein sought is the enforcement of an obligation against that so thus deposited under a precise contract with the state of Mississippi, that the deposit would be in trust for this cross-defendant.

Shields v. Thomas, 71 Miss. 260; Woodruff v. State, 77 Miss. 109; Blake v. McClung, 172 U.S. 239, 43 L.Ed. 432; National Mercantile Co. v. Mattson, 45 Utah 163; People v. Granite State Prov. Assn., 55 N.E. 1054; Fowert v. Blank, 205 Pa. St. Rep. 299, p. 302.

Section 147 of the Constitution 1890, substantially abolishes the difference between jurisdiction at law and in equity.

When an action is erroneously begun in equity the same should not be dismissed but should if a cause of action is stated, be transferred to the law side of the docket and there prosecuted to conclusion.

22 Equity Rule, sec. 274 of the Judicial Code, Title 28, sec. 397; Mills v. Rutherford County, 281 U.S. 120, 74 L.Ed. 737; White v. Sparkhill Realty Corp., 280 U.S. 500, 74 L.Ed. 578; Twist v. Prairie Oil & Gas Co., 274 U.S. 684, 71 L.Ed. 1297; Liberty Warehouse Co. v. Grannis, 273 U.S. 70, 71 L.Ed. 541; Liberty Oil Co. v. Condon, 260 U.S. 235, 67 L.Ed. 232.

Equity always has jurisdiction for relief where the defendant was beyond the seas.

Dollman v. Moore, 70 Miss. 267; Farrar v. Haselden, 9 Rich. Eq. 331.

Hemingway's Code, section 3157, filing a demurrer to the jurisdiction gave jurisdiction of the person.

Fisher v. Pacific Mut. Life Ins. Co., 112 Miss. 30, 72 So. 846; New Orleans, Jackson & Great Northern Railroad v. Wallace, 50 Miss. 244, p. 248; L. & N. R. R. Co. v. Poole, 72 Miss. 487, 16 So. 753; Railroad Co. v. Fortenberry, 107 Miss. 79, 65 So. 507; Miss. Central R. Co. v. May, 149 Miss. 334, 115 So. 561.

Wainwright v. Atkins, 61 So. 454, 104 Miss. 438; Standard Oil Co. v. State, 65 So. 468, 107 Miss. 377; 34 C. J. 835; St. Louis & San Francisco v. McBridge, 141 U.S. 128, 35 L.Ed. 659; Western Loan & Savings Co. v. Bute, 210 U.S. 368, 52 L.Ed. 1101; Frisby v. Harrison, 30 Miss. 452, at page 465; Graves v. Fulton, 7 Howard (Miss.) 592; Stevens v. Richer, 1 Howard (Miss.) 522; Young v. Rankin, 4 Howard (Miss.) 27; Henderson v. Cramer, 5 Howard (Miss.) 525; Benedict v. Seiberling, 17 F.2d 841; Hammond v. District Court, 39 A. L. R. 1497; McLean Lumber Co. v. United States, 237 F. 460; Bester v. Inter-County Fair, 135 Wis. 341; State ex rel. Hopman v. Superior Court, 153 P. 317; Teater v. King, 35. Wash. 138, 76 P. 688; Fulton v. Ramsey, 67 W.Va. 321; McKillip v. Harvey, 80 Neb. 266; State v. Grimm, 143 S.W. 484; Winter v. Union Bldg. Co., 93 P. 931; Cloise v. Justice's Court of First Judicial Township, 103 P. 319; Merchants Heat & Light Co. v. Clow, 204 U.S. 286, 51 L.Ed. 488; Big Vein Coal Co. v. Read, 229 U.S. 38, 57 L.Ed. 1056; Western Loan & Sav. Co. v. Butte & B. Consol. Min. Co., 210 U.S. 368, 52 L.Ed. 1101, 28 S.Ct. 720.

The decree should have been at all events a dismissal as to Morris & Company without prejudice.

Weathersby v. Lumber Co., 88 Miss. 538, 41 So. 65; Shaw v. Laurel Oil & Fertilizer Co., 45 So. 878, 92 Miss. 340, p. 348; Twist v. Prairie Oil & Gas Co., 274 U.S. 864, 71 L.Ed. 1297.

F. B. Jackson, Assistant Attorney-General, of Jackson, for the state.

When the insurance company qualified in Mississippi, it became thereby subject to suit in Mississippi, not only on causes of action arising within Mississippi, but those arising without Mississippi, and this has been consistently the law in Mississippi.

N. O. J. & G. R. R. Co. v. Wallace, 50 Miss. 244; Pullman Co. v. Lawrence, 74 Miss. 800, 22 So. 53; Vicksburg, etc., R. Co. v. Forcheimer, 113 Miss. 531, 74 So. 419; Secs. 4088, 4093, Hemingway's Code 1917; secs. 4165, 4166, Code 1930.

The construction of the local statute as to service of process is a local question, whereas to the Supreme Court of the United States is bound by the decisions of this court, and where as to this court must express its independent judgment.

Pennsylvania Fire Ins. Co. v. Gold Issue Mining, etc., Co., 243 U.S. 93, 61 L.Ed. 610, at p. 615; Becker v. Columbia Bank, 112 Miss. 819, 73 So. 798; Dresser v. Hathorn, 144 Miss. 24, 109 So. 23; Edward Hines Yellow Pine Trustees v. Martin, 268 U.S. 459, 45 S.Ct. 543, 69 L.Ed. 1050; Brien v. Williamson, 7 How. 16; Deans v. McLendon, 30 Miss. 343; Doe v. Hamilton, 23 Miss. 498; Bailey v. Fitzgerald, 56 Miss. 578.

This court in pursuance of plenary power has continuously held foreign corporation, when qualifying to do business by appointing a local agent for service of process, is suable in Mississippi, especially insurance companies, and in declaring that this court had not so held the Federal Supreme Court erred.

State v. Alley, 96 Miss. 720, 51 So. 467; Fikes v. State, 87 Miss. 251, 39 So. 783; Tyson v. Banton, 273 U.S. 418, 71 L.Ed. 718; Aetna Ins. Co. v. Hyde, 275 U.S. 440, 72 L.Ed. 357; Piedmont v. Wallin, 58 Miss. 1; Fireman's Ins. Co. v. Hemingway's, Federal Case No. 4797.

A foreign corporation is amenable to process to enforce a personal liability in the absence of consent, only if it is doing business within the state in such manner and to such extent as to warrant the inference that it is present there. And even if it is doing business within the state, the process will be valid only if served upon some authorized agent.

St. Louis Southwestern R. Co. v. Alexander, 227 U.S. 218, 226, 57 L.Ed. 486, 488; Philadelphia & Reading Ry. Co. v. McKibbon, 243 U.S. 264, 61 L.Ed. 710.

Where there is a consent the appellee is liable to suit, irrespective of whether business be done or not.

Robert Mitchell Furniture Co. v. Selden Brec. Constr. Co., 257 U.S. 213, 66 L.Ed. 201; Pennsylvania F. Ins. Co. v. Gold Issue Min. & Mill. Co., 243 U.S. 93, 61 L.Ed. 610, 37 S.Ct. 344; Hess v. Pawloski, 71 L.Ed. 1091, 274 U.S. 352; Code 1930, secs. 4165 and 4166.

A foreign corporation which obtained a certificate entitling it to do business in this state and had paid the appropriate fees and taxes involved in that act, was doing business within the state.

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