National Liberty Insurance Company v. Trattner

• Decision Date: 04 April 1927
• Docket Number: 336
• Citation: 292 S.W. 677,173 Ark. 480
• Parties: NATIONAL LIBERTY INSURANCE COMPANY v. TRATTNER
• Court: Arkansas Supreme Court

292 S.W. 677

173 Ark. 480

NATIONAL LIBERTY INSURANCE COMPANY v. TRATTNER

No. 336

Supreme Court of Arkansas

April 4, 1927

Appeal from Craighead Circuit Court; G. E. Keck, Judge; reversed.

STATEMENT BY THE COURT.

Appellee brought this suit in the Craighead County Circuit Court to recover for the loss of his stock of merchandise, of the value of $ 10,500, and fixtures of the value of $ 1,500, on seven policies of fire insurance, aggregating $ 12,000, the property having been destroyed by fire. The goods and fixtures, at the time the policies were issued and the loss occurred, were contained in a store on South Broadway, city of St. Louis and the State of Missouri, in which city and State the plaintiff lived and the policies, which were standard fire insurance policies, were issued.

Summons was served on Bruce T. Bullion, Insurance Commissioner, agent for service, by the sheriff of Pulaski County, Arkansas, in that county.

The defendants are foreign corporations authorized to do business in this State, having complied with the conditions required by law. They appeared specially for that purpose, and filed a motion to quash the summons, alleging that they are foreign corporations authorized to do business in this State.

"Having authorized, pursuant to the laws of this State, service upon it of legal process in actions upon contracts entered into solely in this State; that defendant has at no time consented in any wise to the service of legal process upon it by service upon the Insurance Commissioner and Fire Marshal of this State in actions upon contracts made by it without this State; that the contract of insurance sued upon herein was made in the State of Missouri, where the plaintiff at the time resided, and where the property insured at the time of the insurance and the time of its alleged loss was located and that the plaintiff has, at all times since the execution of said contract of insurance, been, and is now, a resident of the city of St. Louis and State of Missouri; that the said policy of insurance sued upon herein was issued by the defendant as a foreign contract, executed by it in the State of__ and delivered to the plaintiff in the State of Missouri and is no more subject to regulation by the laws of this State than any other contract, and, consequently, any law prescribing special service upon defendant to enforce collection because it is a contract of insurance is a special law, and is in contravention of both the Constitution of the State of Arkansas and the Constitution of the United States that § 6063, Crawford & Moses' Digest of the Statutes of the State of Arkansas, 1921, where under service is attempted to be had in this action, upon the defendant upon a contract of insurance not entered into in this State is in violation of the Constitution of the United States, § 1 of the Fourteenth Amendment to said Constitution. * * *

"That the said section of said statute is also in violation of the Constitution of the State of Arkansas, §§ 3 and 18 of article 2.

"That, under and by virtue of the said provisions of the Constitution of the United States and the Constitution of the State of Arkansas, the defendant, a foreign insurance company, which has not consented to service upon it upon causes of action arising in other states, is entitled to the same rights and privileges as any other citizen of the United States, and consequently, in view of the constitutional provisions hereinabove set forth, the said purported service of the writ of summons as aforesaid is null and void, and the said writ of summons and the return of service on said writ of summons should accordingly be quashed.

"Defendant further moves to quash the writ of summons herein and return thereon for the following reasons:

"Defendant now is, and, during all of the times mentioned in said complaint, was, a foreign corporation, licensed to do business in this State under and by virtue of the provisions of article 12, § 11, of the Constitution of the State of Arkansas; that, under and by virtue of said provisions of said Constitution and the statutes of the State of Arkansas enacted in aid thereof, this defendant is not required to consent to, nor has it consented to, service upon it of any process by serving the Insurance Commissioner, Fire Marshal or other authorized agent, except as to contracts made or business done in this State. The contract sued on herein is a contract of fire insurance, made and executed by the defendant at its home office in the State of__and delivered to the plaintiff in the State of Missouri, and is a contract to insure against loss by fire to property located in the city of St. Louis, and State of Missouri. That the loss complained of occurred in the city of St. Louis and State of Missouri, and the plaintiff now is, and was at the time of the filing of the complaint herein, a resident of the State of Missouri. That the service of summons in this cause upon the Insurance Commissioner and Fire Marshal of the State of Arkansas was without authority of law, and was and is void."

Another motion to quash was also filed, under special appearance, denying the jurisdiction of the court because no service of summons had been made upon any one authorized to receive service for the corporation, because the insurance policy sued on was not issued in Arkansas; the property insured was not in Arkansas; the loss did not occur in Arkansas; the plaintiff is not and has not been a resident of Arkansas; because, under the statute authorizing it to do business in the State, it was required only to accept service in certain cases in suits arising from contracts entered into in this State, and for the benefit of those holding claims properly payable in this State; alleged the attempt to secure service herein was a violation of the defendant's right under the Fourteenth Amendment of the Constitution of the United States; that the statutes of Arkansas do not authorize the service of process in the manner herein upon cause of action of the kind sued on, and that the application of the statute to this action is prohibited by §§ 3 and 18 of article 2 and § 11 of article 12 of the Constitution of Arkansas.

A response was filed to the motions to quash, and, upon a hearing, they were overruled and exceptions saved, and, without waiving their rights under the motions to quash, the answers were filed.

Testimony was introduced tending to show the value of the goods and fixtures insured, the loss, and the denial of liability by the companies. The testimony showed that the plaintiff was a resident of the State of Missouri; that the goods and fixtures covered by the policies were contained in a store or building in the city of St. Louis, that State, where the plaintiff was a citizen and resident, and where the policies of insurance were delivered and the loss occurred.

The evidence was conflicting as to the value of the property and cause of the fire and loss, some of the testimony tending to show that the fire and loss was due to an explosion, for which the company could not be held liable.

After the testimony was in, the appellant asked leave to amend its answer, striking out the...