Roberts v. American National Ass. Company
| Citation | 212 S.W. 390,201 Mo.App. 239 |
| Parties | E. H. ROBERTS, Administrator of the Estate of RALPH G. SMITH, et al., Respondents, v. AMERICAN NATIONAL ASSURANCE COMPANY, Appellant |
| Decision Date | 27 January 1919 |
| Court | Court of Appeals of Kansas |
Appeal from Schuyler Circuit Court.--Hon. N. M. Pettingill, Judge.
Judgment reversed.
Highbee & Mills for respondent.
Jones Hocker, Sullivan & Angert, Campbell & Ellison, and James C Jones, Jr., for appellant.
This is an action upon a policy of insurance on the life of Ralph Goodrich Smith. The policy was issued under date of December 3, 1913, insured being then a resident of Adair county, Missouri. By the terms of the insurance contract, defendant agreed that, upon the death of insured during the continuance of the policy, it would pay the sum of $ 2500 at its Home Office in St. Louis, Missouri, to the administrators, executors or assigns of the insured. To secure an indebtedness, Smith assigned the policy to one Foreman, who in turn assigned it to John C. Mills who joins in the suit and consents that recovery may be had in the name of the administrator herein.
After the issuance and assignment of the policy, the insured removed to and resided in the town of Leaksville, State of North Carolina, where he died on July 16, 1915. Plaintiff, Roberts, was appointed administrator of his estate by the probate court of Schuyler county, Missouri on the . . . . day of . . . ., 1917, and thereafter, on September 4, 1917, this suit was instituted in the circuit court of said Schuyler county, returnable to the October, 1917, term, which began on the 15th of that month. The petition alleged the existence of the defendant as an insurance corporation organized under the laws of Missouri, the issuance of the policy, the death of insured on the date aforesaid and the appointment of an administrator. Nothing was said in the petition as to the place of insured's death. Service was obtained on the defendant at its home office in the city of St. Louis, Missouri, on September 5, 1917.
On the return day, October 15, 1917, the defendant filed its answer which contained first a plea to the jurisdiction of the court over the cause and the person of defendant, with a prayer that defendant be dismissed with its costs, and next a plea to the merits of the cause based upon the charge that the policy was not in force at the time of Smith's death, because of his failure to pay a certain installment of premium when due.
As grounds for the plea to the jurisdiction, it was alleged therein that the defendant was a Missouri corporation having its chief office or place of business in the city of St. Louis; that it had no office nor agent in Schuyler county, Missouri; that the insured, Ralph Goodrich Smith, resided in Leaksville, North Carolina, and died there. Consequently, it was contended that under section 1754, Revised Statutes, 1909, which provides that "Suits against corporations shall be commenced either in the county where the cause of action accrued, . . . or in any county where such corporations shall have or usually keep an office or agent" etc., the court was without jurisdiction over the action or the person of defendant.
The cause was set for trial on the first day of the term to which it was returnable, to-wit, October 15, 1917. When it was called, defendant asked, and the court granted, a trial, first, of the issues under the plea to the jurisdiction. Evidence on that was heard and it was established beyond question that the defendant had no office nor agent in Schuyler county, that the insured was residing in Leaksville, North Carolina, and died there, and that service was made upon defendant at its home office in St. Louis.
In opposition to the plea, plaintiff showed that on September 22, 1917, the defendant gave notice to take, and on the 27th of September did take, depositions in St. Louis. These depositions related to matters concerning the merits of the issue except the fact that the insured was living at Leaksville, North Carolina, and died there. Plaintiff also introduced a written stipulation between counsel for plaintiff and defendant which was filed in court on said return day, October 15, 1917. wherein, "for the purposes of the trial" it was admitted that defendant executed the policy, that Smith prior to his death was practicing his profession of Osteopathy at Leaksville, North Carolina, and died there on July 16, 1915; that his widow promptly notified the defendant; and that it had denied liability on the ground that the policy was not in force at the time of his death. This stipulation seems to have been entered into October 1, 1917, but, as stated, was not filed in court until the return day, to-wit, October 15, 1917, and after the plea to the jurisdiction was filed.
The court, after hearing the evidence pro and con on the plea to the jurisdiction, found "that before said plea was filed by the defendant, the defendant had entered its appearance in this action and waived all objection to the jurisdiction of this court." Thereupon, the plea to the jurisdiction was overruled. To this defendant excepted and then requested that the trial on the merits be laid over till later in the term, December 17, to enable defendant to apply to the Supreme Court for a writ of prohibition. This was done but the writ was refused. On December 17, and at the same term, the case was called for trial on the merits when the defendant renewed its objection to the jurisdiction of the court. This again was overruled, the defendant excepting.
The case was then tried on its merits before the court without a jury. The court, refusing all declarations of law, found for plaintiff and rendered judgment on the policy for $ 2500. The defendant has appealed.
The venue, or the place where the law directs the suit to be instituted, was either in the county where the cause of action accrued or in any county where the defendant had an office or agent. [Sec. 1754, R. S. 1909; State ex rel. v. Gantt, 203 S.W. 964.] The cause of action on a life insurance policy accrues at the place where the insured dies. [Rippstein v. St. Louis Mutual Life Ins. Co., 57 Mo. 86; Martin v. Mutual Life Ins. Co., 190 Mo.App. 703, 7, 5; Bankers' Life Assn. v. Shelton, 84 Mo.App. 634.] Consequently, Schuyler county was not the venue specified by the law as the proper place in which to bring the suit, since the cause of action did not accrue there nor did the defendant have an office or agent there.
The fact that the cause of action did not accrue in Schuyler county was not disclosed by anything in the petition, nor did the absence of jurisdiction on account of improper venue appear there or in the sheriff's return. Hence, the only way to question the court's lack of jurisdiction was by a plea to the jurisdiction in the answer. [Little v. Harrington, 71 Mo. 390.] Our Code contemplates but one answer which must contain all the defenses, and, therefore, the coupling of a plea to the jurisdiction which must be raised by answer, with a plea to the merits, does not waive the matter of jurisdiction. [Cohn v. Lehman, 93 Mo. 574; Meyer v. Phoenix Ins. Co., 184 Mo. 481, 487; Thomasson v. Mercantile, etc., Ins. Co., 217 Mo. 485; Newcomb v. New York, etc., R. Co., 182 Mo. 687; State ex rel. v. Vallins, 140 Mo. 523; State ex rel. v. Grimm, 239 Mo. 135; Barnett v. Colonial Hotel Building Co., 137 Mo.App. 636, 648; Jordan v. Chicago and Alton R. Co., 105 Mo.App. 446, 456.]
But the trial court held, and plaintiff contends here, that because the defendant served notice to take, and did take, depositions, and entered into a stipulation as to the truth of certain facts, before the plea to the jurisdiction was filed, the lack of jurisdiction was waived.
But, in determining whether such acts constitute a waiver of the lack of jurisdiction here complained of, several things are to be kept in mind. The lack of jurisdiction is based upon improper venue and not upon improper or defective notice or summons, or the service thereof. The acts relied upon to constitute waiver were things done outside of court and amounted to nothing more than a combined preparation of the proof or evidence needed by defendant in both trials, the one on the plea and the other on the merits. This preparation for trial was done before there was any opportunity to file a plea to the jurisdiction; and the objection to the jurisdiction was filed as soon as possible,...
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