Rose v. Kimberly & Clark Co.

• Decision Date: 05 March 1895
• Citation: 62 N.W. 526,89 Wis. 545
• Court: Wisconsin Supreme Court
• Parties: ROSE v. KIMBERLY & CLARK CO.

89 Wis. 545

62 N.W. 526

ROSE

v.KIMBERLY & CLARK CO.

Supreme Court of Wisconsin.

March 5, 1895.

Appeal from Winnebago county court; C. D. Cleveland, Judge.

Action by Charles Rose, receiver, against the Kimberly & Clark Company. Judgment for plaintiff, and defendant appeals. Reversed.

Action by the receiver of an insolvent foreign mutual insurance company to recover an assessment made upon policy holders. The Consolidated Mutual Fire Insurance Company was an Illinois corporation, having its principal office at Chicago, and it never complied with the laws of the state of Wisconsin relating to foreign insurance companies doing business within this state, and consequently had no license to transact such business. In 1890 the defendant made application to the insurance company for insurance upon its property in Neenah, in this state. The applications were sent by mail to the office of the insurance company at Chicago, and there accepted, and the policies mailed to the defendant at Neenah. The policies contained provisions that the insured assumed a contingent liability equal to three times the annual cash premium, to pay losses and expenses, the same to be paid upon the making of assessments for that purpose by the officers of the company. In December, 1890, the officers of the insurance company made an assessment of 20 per cent. upon the policy holders, upon this contingent liability to pay losses and expenses, and the defendant refused to pay. In April, 1891, the plaintiff was appointed receiver of the insurance company by the proper court at Chicago, and duly qualified, and brings this action as such receiver. It appeared that said assessment was necessary to pay the losses and expenses of the company outstanding. Upon these facts, which were substantially undisputed, the trial court held that the policies were valid contracts of insurance, and rendered judgment for the plaintiff for the amount of the assessment, and the defendant appealed.Eaton & Weed, for appellant.

M. C. Phillips, for respondent.

WINSLOW, J. (after stating the facts).

The insurance contracts in question were made outside of this state upon property within the state, by a foreign company which had not complied with the laws of Wisconsin, and was thus debarred from doing business within the state. The question arising is not whether these contracts can be enforced in the courts of Illinois where they were made. It might well be that, were this action pending before an Illinois court, it would be held that, the contracts being Illinois contracts, and there being nothing in the statutes or policy of that state prohibiting them, they would be held valid and binding. Such, in substance, was the ruling of this court in the case of Seamans v. Knapp (decided at last term) 61 N. W. 757, where a contract made in Wisconsin insuring property in Missouri by a Wisconsin insurance company which had no license to transact...