S. M. Smith Ins. Agency v. Hamilton Fire Ins. Co.
| Citation | 69 W.Va. 129 |
| Court | West Virginia Supreme Court |
| Decision Date | 11 April 1911 |
| Parties | S. M. Smith Insurance Agency v. Hamilton Fire Insurance Company. |
Withdrawal from the State by a foreign insurance company, after liability incurred, but before suit brought, if otherwise available in abatement of the suit, such fact not appearing on the face of the summons or return of service thereof, is not good ground for quashing the summons, (p. 132).
The statute prescribing no form for acceptance of service of process by the auditor, for and on behalf of a foreign corpora-, tion, authorized by section 3805, Code 1906, such acceptance, signed by the auditor, neither the process nor acceptance showing that defendant is a foreign corporation, or sued as such, is sufficient, unless the fact be controverted by plea in abatement, properly verified, and filed at rules, to confer jurisdiction, and to affirmatively show the necessary jurisdictional facts, (pp. 132, 133).
ternative Relief.
If a stranger pays the debt of another, without the debtor's request, such payment not having been ratified by the debtor, the stranger may sue the debtor in equity, and if such payment be not then ratified, the debt may be enforced against the debtor, in favor of such stranger, as equitable assignee thereof; or, if then ratified, he may be decreed repayment of the amount paid for the use of the debtor, (p. 134).
Courts.
Withdrawal by a foreign insurance company from doing business in this State, will not deprive the courts of this State of jurisdiction of actions subsequently brought against it for liabilities incurred and accruing here before such withdrawal, (p. 134).
A policy of fire insurance of a foreign insurance company, which provides that it shall not be valid until countersigned by an agent located in this State, although the property covered by the policy be located in another State, and which provides for no particular place of payment of the loss, becomes a contract in this State and of the county where so countersigned, giving the circuit court of that county jurisdiction of the subject matter of the contract, (p. 135).
Although a policy of fire insurance requires that proof of loss shall be furnished within sixty days after the fire occurs, unless the time be extended by the company, but there is no provision therein forfeiting the policy for failure to comply with this requirement, the effect of such provision is to postpone right of action until such proof be furnished, but not to wholly destroy all right of recovery thereon, (p. 135).
Appeal from Circuit Court, Mercer County.
Appeal by the S. M. Smith Insurance Agency against the Harm ilton Fire Insurance Company. Decree for plaintiff, and defendant appeals.
Affirmed.
J. ii. Henry, for appellant:
Process issued in suit January 10, 1908. Defendant's right to do business in West Virginia expired December 31, 1907. W. Va. Code, § 1104-5; 1107 [A 3516 Supp. 1907.]
Plaintiff, as defendant's trusted agent, could not involve defendant in a loss and then buy a law suit against it, growing out of plaintiffs own wrong. 31 Cyc. 1194, 1430, 1432 et seq., 1442, 1444, 1447, 1451, 1535, 1536, 1537; Bartholomew v First Nat. BJc., 57 Ivan. 594; 30 Cyc. 1182, n. 15.
The Policy was void under its terms, because the insured property did not stand on ground either owned by or leased to, the insured. Cooley Ins. Briefs, p. 1361.
Defendant was never sumimoned. Jurisdiction by summons must affirmatively appear of record. Hunter v. Spotts- wood, 1 Wash. 145; Moore v. Holt, 47 S. E..252, et c. c.
Filing answer under protest did not cure this defect. Price v Pinnell, 4 W. Va. 296; Hickman v. Larkey, 6 Graft. (Va. Rep. Ann. and note) 210; Bank v. Bank, 3 W. Va. 386; Chapman v. Maitland, 22 W. Va. 344-5.
The policy teas not a West Virginia contract. It was delivered to insured, in violation of Va. Const, sec. 163, par. CCLX, and Va. Code, sees. 1105 and 1269A, which avoided contract. Jurisdiction of circuit court of Mercer county under ch. 123, W. Va. Code, is not shown,
Plaintiff cannot recover under its first deposition and original bill. It is a volunteer, and violated its duty to defendant. Bartholomew v. Bank, supra; 30 Cyc. 1182, n. 15.
It cannot recover under the amended bill and second deposition. The assignment is complete, the remedy at law full and adequate and equity without jurisdiction. Plaintiff both proves and disproves, specifically, the assignment. 40 W. Va. 729; Code W. Va. 3452.
Maness shows an outstanding claims for pari of the whole, for part of which plaintiff sues; and the whole is not set up in this suit. Rivers v. A. C. Wright & Co. 43 S. E. 499; St. L. Boom & Mfg. Co. v. Price, 38 S. E. 527.
Equity takes no jurisdiction of suit on insurance policies for mere money recovery. IV. Cooley, Ins. Briefs, 3946 et c. c.j but only for some special matter, such as in Nease v. Aetna Ins. Co., 32 W. Va. 283.
Sanders & Crockett, for appellee. Miller, Judge:
The decree appealed from adjudged plaintiff to be the equitable assignee or owner of a demand of six hundred and sixtyeight dollars and seventy-five cents, due from the defendant company to J. II. Maness, for loss by fire of his saw mill, covered by a policy of insurance of said company; and that plaintiff recovered from defendant seven hundred and forty-eight dollars and thirty-nine cents, principal and interest accrued to the date of said decree, with interest thereon from that date until paid, and costs.
Jurisdiction in equity is predicated on the theory that after said loss, and liability to Maness, plaintiff, at his solicitation and request, but without the knowledge or assent of defendant, paid Maness on account of said loss seven hundred dollars, assuming, the loss being total, or practically so, that defendant was liable to Maness, for eight hundred dollars, the full amount of the policy; that though there was no assignment, or express agreement by Maness to assign to plaintiff seven hundred dollars of his claim against defendant, it was nevertheless the intention of both that plaintiff should be substituted and succeed to all the rights and benefits of Maness, as against the defendant company, to the extent of the sum so paid him; and that plaintiff should be decreed, as it was decreed, to be the equitable assignee and owner to that extent of his demand against defendant.
The defendant company, before answering, as it did, under protest, without waiving its rights, appeared specially, to challenge the jurisdiction of the court, either of the person of defendant, or of the subject matter of the suit. First, it moved the court to quash the summons, and dismiss the suit from, the docket, assigning as grounds therefor, that it had withdrawn from and had ceased to do business in the State of West Virginia, not before the policy was written, in 1906, or the loss occurred, in March, 1907, but on January 1, 1908, before suit brought, and could not, therefore, be sued on said policy in the courts of West Virginia; and that the acceptance of A. C. Scherr, Auditor, endorsed on said summons, as follows, , was of no effect, null and void.
The first question is, did the court below err in denying said motion? Withdrawal from the State before suit brought, a fact not appearing on the face of the summons, or in the acceptance of service thereof, if otherwise available, would certainly not be good ground for quashing the summons. That would be matter of abatement, pleadable, if good, by proper plea filed at rules. Sections 15 and 16, chapter 125, Code 1906. Such a plea must not only be filed at rules, as required by said section sixteen, but by section 39 of said chapter, it must be verified by affidavit. No such plea was filed. Defendant does set up the same matter in its answer, not verified, but the answer, if it had been verified, was not filed within the time required for a plea in abatement.
But it is said jurisdiction must affirmatively appear on the face of the summons and acceptance of service, and as neither the summons nor the acceptance of service shows defendant to have been a foreign corporation, or sued as such, or the auditor's acceptance a valid exercise of authority conferred by statute or by power of attorney, jurisdiction was not thereby made to affirmatively appear, and defendant was therefore never legally brought before the court. For this proposition counsel rely on Hunter v. Spotswood, 1 Wash. (Va.) 145; Moore v. Holt, 55 W. Va. 507, 47 S. E'. 252; Pennsylvania R. R. Co. v. Rogers, 52 W. Va. 450, 44 S. E. 300, and Railway Co. v. Wright, 50 W. Va. 653, 41 S. E. 147. Neither of these cases support the proposition stated. Raihvay Co. v. Wright, and Railroad Co. v. Rogers relate to the sufficiency of service on a corporation of process from justice's court, as provided by section 38, chapter 50, Code 1906, which required that the officer's return should show on whom service was had, and that he was served in the county in which he resided. This was because the statute so required. The statute does not prescribe any form of service on foreign corporations, or of acceptance of service by the auditor on their behalf. Of course jurisdiction must always affirmatively appear by proper process, and due and...
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