Reyer v. Odd Fellows' Fraternal Accident Ass'n of America

• Decision Date: 22 November 1892
• Citation: 32 N.E. 469,157 Mass. 367
• Parties: REYER v. ODD FELLOWS' FRATERNAL ACC. ASS'N OF AMERICA.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

157 Mass. 367

32 N.E. 469

REYER v. ODD FELLOWS' FRATERNAL ACC. ASS'N OF AMERICA.

Supreme Judicial Court of Massachusetts, Hampden.

November 22, 1892

COUNSEL

C.W. Clark, for plaintiff.

H.W. & C.F. Ely, for defendant.

OPINION

BARKER, J.

The defendant corporation is organized under Pub.St.Mass. c. 115 with authority to transact the business of accident insurance. The plaintiff is the beneficiary in a policy dated December 11, 1888, and issued to one George Reyer, of Indianapolis, Ind., then the plaintiff's husband, who was killed by accident on June 18, 1889. The first count is on a judgment recovered on the policy in the superior court of Marion county, Ind., on December 20, 1889, and the second on the policy itself. The court below directed a verdict for the plaintiff upon the first, and a verdict for the defendant upon the second, count. Both parties filed bills of exceptions.

If the plaintiff is entitled to a verdict upon the first count, she cannot recover upon the second; and her exceptions, relating only to the case made upon that count, may be properly overruled as immaterial. The defendant's exception to the ruling that the plaintiff could recover upon the first count must also be overruled, if, upon the uncontroverted admissible evidence produced at the trial, the Indiana judgment was valid, and if no material evidence bearing upon that point was excluded. The defendant is a Massachusetts corporation, and thus foreign to the state of Indiana. Whether it could be there sued depends upon the position which it had seen fit to place itself in with reference to that sovereignty, in connection with the laws of Indiana; and, if liable to be there sued, whether it was so served with process as to give the Indiana court jurisdiction, also depends upon the acts of the corporation and the statutes of that state. These were all facts upon which the defendant was not concluded by the record of the Indiana court, (Carlton v. Bickford, 13 Gray, 591; Gilman v. Gilman, 126 Mass. 26; Wright v. Andrews, 130 Mass. 149; Gibson v. Insurance Co., 144 Mass. 81, 10 N.E. 729;) and yet if, upon the uncontroverted admissible evidence, the Indiana court had jurisdiction, and if no material evidence was excluded, the ruling that the plaintiff could recover in this action upon the first count was right.

Certain statutes of Indiana in force when the policy was issued, and when the Indiana suit was commenced, were in evidence, and not controverted, so that their effect was for the court alone. Kline v. Baker, 99 Mass. 253; Ely v. James, 125 Mass. 36, Gibson v. Insurance Co., 144 Mass. 81, 10 N.E. 729. They are thus stated in the bill of exceptions: "The plaintiff also put in evidence the statutes of Indiana, in force at the time of making the contract on which said judgment was rendered, and at the time of commencement of said suit in Indianapolis, by which it was proved that said superior court of Indiana should have jurisdiction of all civil causes of such a nature as the cause for which said action was brought in said court, and that said court should be a court of record. Said statute also contains the following provisions: 'The process against either a domestic or foreign corporation may be served on the president, presiding officer, mayor, chairman of the board of trustees, or other chief officer; (or, if its chief officer is not found in the county, then upon its cashier, treasurer, secretary, clerk, general or special agent;) or, if it is a municipal corporation, upon its marshal; or, if it is an incorporated library company, upon its librarian. If none of the aforesaid officers can be found, then upon any person authorized to transact business in the name of such corporation.' 'When a corporation, company, or an individual has an office or agency in any county for the transaction of business, any action growing out of, or connected with, the business of such office may be brought in the county where the office or agency is located, at the option of the plaintiff, as though the principal resided therein; and service upon any agent or clerk employed in the office or agency shall be sufficient service upon the principal; or process may be sent to any county, and served upon the principal.' Said statute also provided that it should be unlawful for any corporation organized under the laws of any other state than the state of Indiana to make any insurance or to transact any business in the state of Indiana until such corporation shall file with the auditor of the state of Indiana a written consent that service of process in any suit against the company may be served upon any authorized agent of such company in the state of Indiana, and, if there should be no authorized agent of such company in the county where any suit shall be brought, service may be made upon the auditor of the state of Indiana, with such effect as that made upon an authorized agent of such company. Said statute also contained the following provision relating to foreign corporations: 'Any person who shall, directly or indirectly, receive or transmit money or other valuable thing to or for the use of such corporations, or who shall in any manner make, or cause to be made, any contract, or transact any business, for or on account of any such foreign corporation, shall be deemed an agent of such corporation.' " The bill discloses no other evidence as to the law of Indiana.

It also appeared that the policy sued on in the Indiana action was delivered in Indiana to a citizen of that state, in pursuance of an application made in Indiana by the insured member; and that other like transactions had been similarly entered into between the defendant and other persons in Indiana; that the defendant was in the habit of forwarding notices of assessments upon its Indiana members with the request to pay the same to one Reynolds in Indianapolis, whom it designated as local secretary in that state, and of receiving from him remittances of sums paid to him by members in Indiana upon such assessments, less his commission, as well as of transmitting through him communications relating to proofs of death; and that he rendered accounts to the defendant every third month upon blanks which it furnished, and that it acknowledged to him the receipt of the moneys which he remitted to it at the home office in Massachusetts; and that he had an office for the transaction of the defendant's business in the county where the suit was...