South v. Continental Cas. Co.

• Decision Date: 17 May 1916
• Citation: 170 Ky. 249,185 S.W. 858
• Parties: SOUTH v. CONTINENTAL CASUALTY CO.
• Court: Kentucky Court of Appeals

185 S.W. 858

170 Ky. 249

SOUTH v. CONTINENTAL CASUALTY CO.

Court of Appeals of Kentucky.

May 17, 1916

Appeal from Circuit Court, Franklin County.

Action by Samuel F. South against the Continental Casualty Company. From an adverse judgment, plaintiff appeals. Reversed.

Polk South and L. W. Morris, both of Frankfort, for appellant.

T. L Edelen and T. B. McGregor, both of Frankfort, for appellee.

MILLER C.J.

The appellant, South, is, and was at the times hereinafter stated, a resident of Franklin county. While he was temporarily in Tampa, Fla., on September 21, 1912, the defendant, an Indiana insurance company, issued to South a policy which insured him against sickness in the sum of $90 per month. On December 18, 1913, appellant instituted this action against the defendant company, in the Franklin circuit court, for $360, being the amount claimed by him for four months' sickness, from June 4 to October 4, 1913. The summons was served upon the state insurance commissioner. The first paragraph of the answer challenged the jurisdiction of the Franklin circuit court by alleging that the defendant was a foreign insurance company, with its principal office in Chicago, Ill.; that it had no principal office or place of business in Franklin county, Ky.; and that the contract sued on arose out of a transaction with an agent of the defendant but that said transaction did not take place in Franklin county. The other three paragraphs of the answer went to the merits of the case, and need not be now considered. The plaintiff demurred to the first paragraph of the answer denying the jurisdiction of the circuit court, and, that court having sustained the demurrer and dismissed the petition, the plaintiff moves this court to grant him an appeal, the amount in controversy being as much as $200 and less than $500.

Section 631 of the Kentucky Statutes provides that before authority is granted to any foreign insurance company to do business in this state, it must file with the insurance commissioner a resolution, adopted by its board of directors, consenting that service of process upon any agent of such company in this state, or upon the commissioner of insurance of this state, in any action brought or pending in this state, shall be a valid service upon said company. The appellee complied with this statutory provision. It contends, however, that the venue of this action is controlled by section 71 of the Civil Code of Practice, which provides as follows:

"Excepting the actions mentioned in sections 62 to 66, both inclusive, and in sections 70 and 75, an action against an incorporated bank or insurance company may be brought in the county in which its principal office or place of business is situated; or, if it arises out of a transaction with an agent of such corporation, it may be brought in the county in which such transaction took place."

Section 78 of the Code further provides:

"An action which is not required by the foregoing sections of this article to be brought in some other county may be brought in any county in which the defendant, or in which one of several defendants, who may be properly joined as such in the action, resides or is summoned."

As the exceptions mentioned in section 71 do not affect the case, it is insisted that since the appellee had no principal office or place of business in Franklin county, the action could have been brought only in the county in which the contract of insurance was made; and, as the contract was made in Florida the suit could not be brought in Kentucky. If this view of the question is to prevail, appellant cannot bring an action upon his policy in the state of Kentucky, notwithstanding the fact that appellee has complied with section 631 of the Kentucky Statutes, by consenting that service of process upon the insurance commissioner of this state shall be a valid service upon...