Rodgers v. Mutual Endowment Assessment Ass'n

• Decision Date: 08 August 1882
• Citation: 17 S.C. 406
• Parties: RODGERS v. MUTUAL ENDOWMENT ASSESSMENT ASSOCIATION.
• Court: South Carolina Supreme Court

17 S.C. 406

RODGERS v. MUTUAL ENDOWMENT ASSESSMENT ASSOCIATION.

Supreme Court of South Carolina.

August 8, 1882

1. An acceptance of service of complaint by defendant's attorneys disregarded, it having been made under a misunderstanding between counsel as to the service of the summons.

2. The distinction between subject of action and cause of action considered.

3. An agreement was made in this State between a citizen thereof and a foreign Mutual Assessment Life Insurance Association whereby application was made for membership and the amount then paid was to be refunded, if the application was rejected; the rules of the Association required proof of death claims to be made at the home office, when an assessment was to be made and the claims paid there. Held , that the claim of the beneficiaries under such citizen's certificate after his death was not a cause of action that arose in this State.

4. The cause of action not having arisen in this State and such foreign corporation having no property here, it could not be made a party defendant to an action by the beneficiaries on this certificate.

Before PRESSLEY, J., Richland, July, 1881.

Action by Ann S. Rodgers, widow, and her children, against the Mutual Endowment Assessment Association of Baltimore Maryland. After service of the summons as stated in the opinion, defendant wrote to counsel to represent it. Such counsel, in ignorance of where the cause of action arose, or that defendant had no property or agency in this state understood from a conversation with plaintiffs' attorneys that the summons had been properly served, and then demanded and accepted service of a copy-complaint. As soon as defendant's attorneys learned the real facts, without answering they made a motion to set aside the summons and complaint, as the defendant had not been brought within the jurisdiction of the Court.

This motion was refused, his honor saying that where a contract might be performed by one of the parties in one place and is to be performed by another one of the parties in another place, the contract may be performed in either place, and the cause of action may arise in either.

Defendants appealed upon several exceptions, all of which raised the single point that the cause of action did not arise in this State, and that, therefore, the motion should have been granted.

Messrs. Pope & Haskell , for appellants.

Messrs. N. K. Perry and J. T. Seibles , contra.

OPINION

MR JUSTICE MCGOWAN.

" The Mutual Endowment Assessment Association of Baltimore, Maryland" is a body corporate, as its name indicates, of the State of Maryland. It seems to be a peculiar kind of life insurance company, which extends its benefits not by issuing policies of insurance to strangers in the usual way, but by the parties to be insured becoming members of the association, and mutually participating in the profits and losses of the risks taken. When one is accepted as a member he receives a certificate that he is a beneficiary and " entitled to mortuary benefits, to be assessed according to the tables of the association; and to be paid at the office of the association within ninety days after the death of said member shall have been satisfactorily established. All dues payable at the office of the association in Baltimore."

It seems that the association had a canvassing agent, J. J. Mackey, who induced John W. Rodgers, of Columbia, South Carolina, to make application to become a member of the association, and gave him the following paper. " Office of Mutual Endowment Assessment Association, Baltimore, Md., Sept. 8, 1880. Per due bill. Received of J. W. Rodgers the sum of fifteen dollars, it being the amount specified in the application for a membership in the Mutual Endowment Assessment Association of Baltimore. If said application is not accepted by the association the above due bill shall be returned. (Signed) J. J. Mackey, Agent."

Nothing further appears to have been done until March 5, 1881, when Rodgers died without having received his certificate of membership. The association refused to pay anything and Anna S. Rodgers, widow, and the other plaintiffs, children of John W. Rodgers, filed the complaint in Richland County, South Carolina, claiming judgment against the association for $2500, the alleged insurance on the life of the said John W. Rodgers, deceased. An order of publication was allowed against the corporation as an absent defendant, and a copy of the complaint was served on the secretary of the company in Baltimore. A motion was made on behalf of the defendant corporation to set aside the summons and complaint on the ground that the same had not been served on the defendants, so as to bring them within the jurisdiction of the Court. The Circuit Judge refused the motion and gave leave to answer, and the appeal comes to this Court alleging error in that order.

We agree with the Circuit Judge in disregarding the matter of alleged acceptance of service by the attorney of the defendant, as that was clearly shown to have been a misunderstanding and was very properly not urged by the plaintiffs' attorney.

The single question is whether legal...