State ex rel. American Central Life Insurance Company v. Landwehr

• Decision Date: 23 November 1927
• Docket Number: 28271
• Parties: The State ex rel. American Central Life Insurance Company v. Frank Landwehr, Judge of Circuit Court
• Court: Missouri Supreme Court

300 S.W. 294

318 Mo. 181

The State ex rel. American Central Life Insurance Company v. Frank Landwehr, Judge of Circuit Court

No. 28271

Supreme Court of Missouri

November 23, 1927

Provisional rule made absolute.

Jones Hocker, Sullivan & Angert and Edward C. Crow for relator.

(1) A statute, in the absence of an express intent to the contrary will be confined in its operation to persons in, or to contracts made within, the territorial jurisdiction of the Legislature which enacted it. American Banana Co. v United Fruit Co., 213 U.S. 357; State v. Lancashire Ins. Co., 66 Ark. 466; McCulloch v. Scott, 109 S. E. (N. C.) 789; State v. Pierce, 209 P. 693; Black on Interpretation of Laws, p. 91. (a) The Legislature, by the term "all actions," in Sec. 6310, R. S. 1919, had reference to all actions brought by citizens of Missouri or on account of business transacted by foreign insurance companies in Missouri. State v. Lancashire Ins. Co., supra; McCulloch v. Scott, supra. (b) Sec. 6310, R. S. 1919, authorizing the Superintendent of Insurance to accept service of process on behalf of a foreign insurance company in actions against such company, is limited and confined in its operation to actions brought against the company by citizens of Missouri, or which arise out of business transacted or policies issued by the company in that State. That statute does not authorize the Superintendent of Insurance to accept service of process on behalf of such companies in actions brought by citizens of foreign states on account of policies issued or business transacted by the company in the foreign state. Robert Mitchell Furniture Co. v. Construction Co., 257 U.S. 213; Mo. Pac. Ry. Co. v. Boat Oar Co., 257 U.S. 533; National Liberty Ins. Co. v. Trottner, 292 S.W. 677; Dissenting opinion, State ex rel. Pacific Ins. Co. v. Grimm, 239 Mo. 135; Dissenting opinion, Gold Issue Mining Co. v. Ins. Co., 267 Mo. 524. (2) The limitation of Sec. 6310, R. S. 1919, that service of process on the Superintendent of Insurance shall only be valid and binding upon the foreign insurance company "so long as it shall have any policies or liabilities outstanding in this State,' shows a legislative intention to confine the operation of the statute to acts done, business transacted or policies written by the foreign company in Missouri. Dissenting opinion, State ex rel. Pacific Ins. Co. v. Grimm, 239 Mo. 135. The subject dealt with in Sec. 6310, R. S. 1919, is the privilege to "transact any business by agent or agents in this State," and the regulations which follow should be confined to the subject matter, i. e., to business transacted by the company in Missouri.

James J. O'Donohoe for respondent.

(1) Sec. 6310, R. S. 1919, authorizes the Superintendent of Insurance to accept service of process on behalf of insurance companies incorporated under the laws of sister States in actions brought by citizens of sister States on policies issued and delivered outside of Missouri. State ex rel. Pacific Ins. Co. v. Grimm, 239 Mo. 135; Gold Issue Min. Co. v. Penn. Fire Ins. Co., 267 Mo. 524, Affirmed 243 U.S. 93; Bank Sav. Life Ins. Co. v. Wood, 253 P. 431; Flinn v. Western Mutual Life, 187 Iowa 507; 30 A. L. R., note, pp. 255-292. (2) The limitation of Sec. 6310, R. S. 1919, that service of process on the Superintendent of Insurance shall only be binding upon the foreign insurance company "so long as it shall have any policies or liabilities outstanding in this State" shows no legislative tendency to confine the operation of the statute to policies written by the foreign company in Missouri. Life Association v. Boyer, 62 Kan. 31; 21 R. C. L. 1346. (3) The Legislature by the words "all actions" in Sec. 6310, R. S. 1919, refers to all actions regardless of citizenship or residence; and regardless, too, of where the contracts are made; otherwise, the statute would not apply to "all actions," but to "some actions" only. Placek v. Am. Life Ins. Co., 288 F. 987.

OPINION

Blair, J.

Original proceeding in prohibition. Our provisional rule, including an attached copy of the petition theretofore filed, was duly issued and served upon respondent. He has filed a demurrer, thereby confessing the truth of all facts well pleaded in the petition.

From said petition it appears that relator is an insurance corporation organized under the laws of the State of Indiana and duly authorized to do a life insurance business in the State of Missouri. Respondent is the duly elected, qualified and acting judge of Division One of the Circuit Court of the City of St. Louis. Under the provisions of Section 7991, Revised Statutes 1899 (now Sec. 6310, R. S. 1919), relator appointed the Superintendent of the Insurance Department of this State and his successors as its agent upon whom service of process could be had in suits filed against relator in this State.

On September 7, 1926, one Bertha Row instituted an action against relator in the Circuit Court of the City of St. Louis to recover as beneficiary upon a certain policy of life insurance issued by relator upon the life of her husband, Ebbidel Row, who died March 16, 1926. Insured applied for and accepted said policy in the State of Kansas. He resided in Kansas then and at the time of his death. Bertha Row, the beneficiary in said policy, was then and now is a resident of the State of Kansas. On September 9, 1926, service of summons was had in said cause by the Sheriff of Cole County, Missouri, by delivering a true copy thereof, together with the copy of the petition attached thereto, to the Deputy Superintendent of the Insurance Department of Missouri in the absence of the Superintendent.

At the October term, 1926, of the Circuit Court of the City of St. Louis (which was the return term), relator appeared specially and filed its motion to quash and set aside the return of the sheriff to the writ of summons. The motion to quash was thereafter overruled by Judge Hall, who was then the Presiding Judge of Division One. No other ruling by the trial court was proper, in view of controlling decisions of this court hereinafter referred to. Judge Landwehr succeeded Judge Hall as judge of Division One, wherein said cause is now pending, and he was made respondent in this proceeding.

The sole question in the case is covered by relator's contention "that Section 6310, Revised Statutes 1919, requiring your petitioner, as a condition of its right to transact business in the State of Missouri, to appoint, by power of attorney, the Superintendent of the Insurance Department of the State of Missouri as its agent for the acceptance of process on its behalf in actions instituted against it in said State, is confined and limited to actions instituted on account of business transacted by your petitioner in the State of Missouri, i. e., to actions on policies issued by your petitioner to citizens and residents of the State of Missouri, and that said statute does not authorize or empower the Superintendent or the Deputy Superintendent of the Insurance Department of the State of Missouri to accept service of process on behalf of your petitioner in actions arising out of business transacted by your petitioner in, and with citizens of, other States or on policies issued by your petitioner to citizens and residents of other States, where, as appears from the averments of the petition filed by the said Bertha Row against your petitioner, as aforesaid, the insured under the policy sued on was, at the time of the application therefor, and at the time of its issuance, and at the time of his death, a citizen and resident of such other State, and was at no time a citizen and resident of the State of Missouri."

In the case of Gold Issue Mining & Milling Company v. Pennsylvania Fire Insurance Company, 267 Mo. 524, 184 S.W. 999, and State ex rel. Pacific Mutual Life Ins. Co. v. Grimm, 239 Mo. 135, 143 S.W. 483, this court ruled adversely to relator's contention. Relator is now earnestly insisting that our former decisions are out of harmony with the rule announced by the United States Supreme Court and well-considered decisions of other States and do not soundly construe our own statute, and asks that we now recede from the rule announced in those cases.

As pointed out by Judge Woodson in the Gold Issue Mining & Milling Co. case, the first legislation in this State requiring foreign insurance companies doing business in this State to designate agents, upon whom process could be served in this State, occurred in 1845. Section 3 of Chapter 87 of the Revised Statutes for 1845 was as follows:

"The agent or agents of any such company aforesaid, shall also be required, before commencing business, or, in case he or they have already commenced business, then, on or before the first day of July, eighteen hundred and forty-five, to furnish to the clerk of the county court, to be placed on the records of said court, a resolution of the board of directors of the company for which he or they may propose to act, or are already acting, duly authenticated, authorizing any citizen or person residing in the State of Missouri, or elsewhere having a claim against any such company aforesaid, growing out of a contract of insurance, made with the agent or agents of any such company aforesaid, doing business in this State, to sue for the same in any court in said State having competent jurisdiction; and further authorizing service of process on said agent or agents to be sufficiently binding on said company to abide the issue of said suit, and that such service shall authorize judgments in the same manner that judgments are taken against private individuals; and it is hereby enacted, that the service of process on the said agent or agents, in any action commenced against such company, shall be deemed a...