Rockford Ins. Co. v. Rogers

• Decision Date: 11 January 1897
• Citation: 47 P. 848,9 Colo.App. 121
• Parties: ROCKFORD INS. CO. v. ROGERS et al.
• Court: Colorado Court of Appeals

47 P. 848

9 Colo.App. 121

ROCKFORD INS. CO. v. ROGERS et al.

Court of Appeals of Colorado

January 11, 1897

Appeal from district court, Arapahoe county.

Action by the Rockford Insurance Company against Merrick A. Rogers and Milton J. Stair. Judgment for defendants on the pleadings, and plaintiff appeals. Reversed.

C.J. Blakeney and Sylvester G. Williams, for appellant.

Wells Taylor & Taylor, for appellees.

BISSELL J.

The correctness of a judgment granted on a motion therefor based wholly on the pleadings is challenged by this appeal. Suit was brought by the Rockford Insurance Company against Rogers and Stair as sureties on a bond executed by Wells as principal. The complaint charged that the insurance company was a corporation organized under the laws of Illinois, and permitted to do insurance business in this state. Wells was appointed its agent, and during February, 1893, collected funds and moneys belonging to the insurance company amounting to $938.48. He also collected in March $687.23, and of the total sum paid about $700, leaving $927.62 which he had collected and failed to pay over. The bond which was set up in the complaint was in the usual form. According to its conditions, Wells had been appointed agent of the insurance company in Denver, and agreed to accept the trust, keep a regular and accurate record of accounts and moneys received and pay them over to the company monthly, or as often as they might be demanded. In case of default the bondsmen were to be liable. The answer admitted the plaintiff's corporate character, but denied that it was authorized to transact business in the state; admitted the agency, the execution and delivery of the undertaking, and, on information and belief, denied the receipt of the money. As a second defense it set up the foreign character of the plaintiff company, and that the moneys which Wells had received were premiums which had been paid to him for the company on account of divers policies of insurance which the company had issued in Arapahoe county, to various parties, in the ordinary course of business. The defendants then alleged a failure on the part of the insurance company to file with the secretary of state or the recorder of deeds in Arapahoe county a certificate, signed by the president or secretary, designating its principal place of business, and any agent or agents on whom process might be served. The plaintiff replied, denying that the business was carried on solely in Arapahoe county, and averred that it was done in the state; admitted that they had not filed with the secretary of state or the recorder of deeds the certificate mentioned, and then alleged affirmatively an authority to transact business, by reason of a compliance with the statutes regulating the conduct of insurance business by foreign companies in the state of Colorado, and a compliance with the regulations of the auditor, who is the superintendent of insurance, and the possession of a certificate, issued by him, authorizing them to transact the business of their company in the state. There were some immaterial amendments subsequently made that are unimportant to this discussion, and the case stood for trial in the district court on these issues. Thereupon the defendants moved for judgment on the pleadings, which was heard and granted. It is from this judgment that the appeal is prosecuted.

The appellant insists that for three reasons the judgment is erroneous. It is contended that the failure to file a certificate is not pleadable in bar to the action, and that the defense could not in any event be available, because the parties are estopped by the facts, and the relations of the agent to the company, from raising the question. It is also contended that in any event the statutes which organized and provided for an insurance department, and, in direct terms enacted that the auditor should be the agent of the company on whom process might be served, repealed the former provisions with reference to the filing of a certificate. On at least two of these propositions the law of this state is undoubtedly with the appellant. We would be unadvised, except for the opinion printed in the record, as to the precise basis on which the trial court proceeded to enter this judgment. From this we learn that the failure to file the certificate with the secretary of state or recorder was regarded by the trial judge as absolutely fatal to the action. It was conceded the position was in apparent conflict with the direct decision of the supreme court on the proposition, and to its intimations and evident acceptance of the contrary rule in a subsequent case which is cited. We are unable to pursue a similar course. The question has been pressed on our attention anew, with very considerable elaboration of argument and citation of authorities; and, in a forcible oral argument, counsel for the appellees insist that it is the duty of this court to reconsider the question and, if our conclusions should be in harmony with those of the district judge, to adopt a contrary rule. This we decline. In no contingency, and under no circumstances, whether in obedience to our own convictions of what the law ought to be, or of what the weight and current of authority had declared it to be, would we attempt to overrule the supreme court, or depart from the precedents it has established. We are forced to no such position, however, by the character of the question, or our own convictions respecting it. The constitution, and the statutes which were enacted to carry out its provisions, undoubtedly command foreign corporations who seek to do business in the state to file a certificate in the office of the secretary of state, or the recorder of deeds in the county wherein their principal business is to be transacted, and designate an agent on whom process may be...