Saunders v. London Assur. Corporation, 10014.

• Decision Date: 04 April 1935
• Docket Number: No. 10014.,10014.
• Citation: 76 F.2d 926
• Parties: SAUNDERS et al. v. LONDON ASSUR. CORPORATION.
• Court: U.S. Court of Appeals — Eighth Circuit

76 F.2d 926 (1935)

SAUNDERS et al. v. LONDON ASSUR. CORPORATION.^*

No. 10014.

Circuit Court of Appeals, Eighth Circuit.

April 4, 1935.

Harry L. Jacobs, of Kansas City, Mo. (William G. Boatright and I. J. Ringolsky, both of Kansas City, Mo., on the brief), for appellants.

Samuel Levin, of St. Louis, Mo. (William S. Hogsett, Chester L. Smith, Ralph E. Murray, and Alvin C. Trippe, all of Kansas City, Mo., on the brief), for appellee.

Before WOODROUGH and FARIS, Circuit Judges, and DONOHOE, District Judge.

DONOHOE, District Judge.

This case involves an appeal from a judgment of the District Court quashing service of process in an action commenced in the circuit court of Jackson county, Mo. The suit was commenced by the appellants, residents of Missouri, on three certain fire insurance policies issued by the London Assurance Corporation of the United Kingdom of Great Britain and Ireland, in Chicago, Ill., on certain real property situated in said city. Process was issued and served upon the deputy superintendent of the insurance department of the State of Missouri, under and by virtue of the provisions of sections 5894 and 5895 of the Revised Statutes of Missouri 1929 (Mo. St. Ann. §§ 5894, 5895, pp. 4495, 4498). After removing the cause to the Federal District Court for the Western District of Missouri, the defendant moved to quash the summons and the return thereof. The motion was sustained on the ground that the sections of the statute above noted authorized the service of process upon foreign corporations doing business within the state only in litigation growing out of business transacted within the state.

Section 5894 is the section with which we are particularly concerned. It is quite lengthy, and I shall quote only so much thereof as is necessary for our consideration. It reads: "Any insurance company not incorporated by or organized under the laws of this state, desiring to transact any business by any agent or agents in this state, shall first file with the superintendent of the insurance department a written instrument or power of attorney * * * appointing and authorizing said superintendent to acknowledge or receive service of process issued from any court of record. * * *"

In keeping with the provisions of this statute, the appellee had long since filed the written instrument in manner and form as required, and, at the time the action was commenced, the instrument was on file and in full force and effect. The Supreme Court of Missouri has construed and given effect to this statute in several different cases, and, that being so, its construction is binding upon the federal courts within that jurisdiction. Pennsylvania Fire Ins. Co. v. Gold Issue Co., 243 U. S. 93, 37 S. Ct. 344, 61 L. Ed. 610; Louisville Railway Co. v. Chatters, 279 U. S. 320, 49 S. Ct. 329, 73 L. Ed. 711; Smolik v. Phila. Iron Co. (D. C.) 222 F. 148; Massachusetts Bonding & Ins. Co. v. Concrete Steel Bridge Co., 37 F.(2d) 695 (C. C. A. 4).

While it is earnestly urged that the construction placed by the Supreme Court of Missouri on this provision of the statute is not uniform in the different cases, and that the construction of that court is not free from confusion and doubt, a careful analysis of the more recent decisions of that court does not disclose a situation as contended. In the case of State ex rel. Pacific Mut. Life Ins. Co. v. Grimm, 239 Mo. 135, 143 S. W. 483, 492, a nonresident of Missouri commenced a suit therein upon a policy of insurance issued in a foreign state. A motion to quash the service was overruled. An original proceeding seeking a writ of prohibition was then instituted and denied. I quote the following from the opinion denying the writ: "An examination of the statute shows that its terms are general, and authorize such service of summons in all suits brought against foreign insurance companies. I do not see that this court has any authority to limit or qualify the statute by reading into it words which would limit the right to serve a foreign company by service upon the superintendent of insurance to cases brought by resident plaintiffs, or those based upon contracts issued in this state. A foreign company can do business in the state of Missouri only upon such terms and conditions as the state may see fit to impose."

Later, in the case of Gold Issue Mining & Milling Co. v. Penn. Fire Insurance Co., 267 Mo. 524, 184 S. W. 999, 1005, which was a case wherein the plaintiff, an Arizona corporation, brought suit in Missouri against the insurance company, a foreign corporation, duly licensed and carrying on business in Missouri. The policy involved was issued in Colorado upon buildings situated there. Service of summons was had upon the superintendent of insurance. The defendant moved to quash the summons and service thereof on the ground that such service was insufficient except only in suits upon Missouri contracts. From an adverse judgment the defendants appealed to the Supreme Court. That court, after a careful consideration and review of the history of the legislation, concluded that the statute "clearly authorized the superintendent of insurance to acknowledge the receipt and service of process for any such company in any and all transitory causes of action that might be brought by any one against it in the courts of this state, except those mentioned in section 7044, R. S. 1909 Mo. St. Ann. § 5897, p. 4499, regardless of place where the contract of insurance was entered into; and the language of this amendment is sufficiently comprehensive to embrace residents and nonresidents of the state at the time of the issuance of the policy and at the time of the institution of the suit thereon." Upon review by the Supreme Court of the United States (Pennsylvania Fire Ins. Co. v. Gold Issue Mining & Milling Co., 243 U. S. 93, 37 S. Ct. 344, 61 L. Ed. 610), the decision was affirmed.

Again, in the case of State ex rel. American Central Life Ins. Co. v. Landwehr, 318 Mo. 181, 300 S. W. 294, 298, the Supreme Court of Missouri had under consideration the construction of the statute. The plaintiff was a resident of the state of Kansas. Suit was commenced in Missouri on a policy of life insurance issued by the American Central Life Insurance Company, an Indiana corporation, in the state of Kansas. Likewise, service was had and a motion to quash was overruled. Again an original proceeding in prohibition was instituted, and the provisional rule entered was made absolute. Again that court carefully reviewed the history of the legislation, and considered at great length the decisions in the Gold Issue Mining & Milling Co. v. Penn. Fire Ins. Co. and State ex rel. v. Grimm, supra. Its decision was to the effect that the statute did not authorize the maintenance of a suit in Missouri by a nonresident against a foreign insurance company, licensed to do business therein, and it specifically overruled, to that extent, the decisions in the Grimm and Gold Issue Mining Co. Cases in words as follows: "The foregoing conclusion, if adopted by my Brethren...