State ex rel. Northwestern Mut. Fire Assn. v. Cook

• Decision Date: 10 March 1942
• Docket Number: No. 37868.,37868.
• Citation: 160 S.W.2d 687
• Parties: STATE OF MISSOURI at the relation of NORTHWESTERN MUTUAL FIRE ASSOCIATION, a Corporation, Relator, v. JOHN F. COOK, Circuit Judge for Division No. 2 of the Circuit Court of Jackson County.
• Court: Missouri Supreme Court

160 S.W.2d 687

STATE OF MISSOURI at the relation of NORTHWESTERN MUTUAL FIRE ASSOCIATION, a Corporation, Relator, v. JOHN F. COOK, Circuit Judge for Division No. 2 of the Circuit Court of Jackson County.

No. 37868.

Supreme Court of Missouri.

Court en Banc, March 10, 1942.

Rehearing Denied, April 3, 1942.

Prohibition.

PROVISIONAL RULE DISCHARGED.

Frank E. Tyler, Lucian Lane and Gossett, Ellis, Dietrich & Tyler for relator.

Plaintiff is a foreign corporation and is not a resident of Missouri within the purview, meaning or legal effect of Section 6005, Revised Statutes of Missouri, 1939. The purported summons and return are therefore invalid and conferred no jurisdiction over the person of relator. R.S. 1939, secs. 5072, 5073, 5074, 6005; Germania Fire Ins. Co. v. Francis, 78 U.S. 210, 11 Wall. 210, 20 L. Ed. 77; Dryden v. Ranger Refining & Pipe Line Co., 280 Fed. 257; In re Hudson River Navigation Corp., 59 Fed. (2d) 971; Babcock & Wilcox Co. v. Spaulding, 86 Fed. (2d) 256; Blanchette v. New England Tel. & Tel. Co., 6 Atl. (2d) 161; Larson v. Dubuque Fire & Marine Ins. Co., 238 Mich. 366, 213 N.W. 140; American Barge Line v. Board of Supervisors, 246 Ky. 573, 55 S.W. (2d) 416; Cousins v. Sovereign Camp W.O.W., 35 S.W. (2d) 696, 120 Tex. 107; Herryford v. Aetna Ins. Co., 42 Mo. 148; St. Louis v. Wiggins Ferry Co., 40 Mo. 580; Donohue v. Southwestern Surety Ins. Co., 281 Mo. 267; State ex rel. Ins. Co. v. Hall, 330 Mo. 1107, 52 S.W. (2d) 174; State ex rel. Phoenix v. Harris, 343 Mo. 252, 121 S.W. (2d) 141; State ex rel. Standard Fire Ins. Co. v. Gantt, 274 Mo. 490, 203 S.W. 964; State ex rel. Henning v. Williams, 345 Mo. 22, 131 S.W. (2d) 561; 8 Fletcher on Corporations, chap. 48, sec. 4025, p. 440; 17 Fletcher on Corporations, secs. 8300, 8308, p. 44; 1 Thompson on Corporations (3 Ed.), p. 795.

Watson, Ess, Groner, Barnett & Whittaker and Paul Barnett for respondent.

(1) The statute permits suits by corporations. Secs. 652, 6005, R.S. 1939. (2) The decisions of other states and of the federal courts are not in point. State ex rel. Equitable Life Assur. Society v. Allen, 136 S.W. (2d) 309, 345 Mo. 671; State ex rel. Phoenix Mut. Life Ins. Co. v. Harris, 121 S.W. (2d) 141, 343 Mo. 252; Herryford v. Aetna Ins. Co., 42 Mo. 148. (3) Forest Lumber Company is a resident. (a) The legalistic view. Sec. 10178, R.S. 1929; Secs. 655, 6005, R.S. 1939; State ex rel. Henning v. Williams, 131 S.W. (2d) 561, 345 Mo. 22; Gold Issue Mining, etc., Co. v. Pennsylvania Fire Ins. Co., 267 Mo. 524; 1 C.J. 1400, sec. 129; State ex rel. Ins. Co. v. Grimm, 239 Mo. 135; Talley v. Commonwealth, 103 S.E. 612; United States v. Curran, 299 Fed. 206; Corel v. Chicago, etc., R. Co., 123 Fed. 452; Hunter v. Bremer, 100 Atl. 809; Raymond v. Leishman, 89 Atl. 791; Dublin v. Dublin, 270 N.Y. Supp. 22; In re Riley's Will, 266 N.Y. Supp. 209; Savage v. Scott, 45 Iowa, 130; State v. Cunningham, 55 Atl. 654; Witbeck v. Marshall-Wells Hdw. Co., 88 Ill. App. 101; Estopinal v. Vogt, 46 So. 908; Oglesby v. Turner, 54 So. 400; Fidelity & Dep. Co. v. Sheahan, 133 Pac. 228; Hayward v. Hayward, 115 N.E. 966; Denny v. Sumner Co., 184 S.W. 14, 16; Pickering v. Winch, 87 Pac. 763; Meyer v. Phoenix Ins. Co., 184 Mo. 481; Baile v. Equitable Fire Ins. Co., 68 Mo. 617; Middough v. St. Joseph, etc., R. Co., 51 Mo. 520; Young v. Queen Ins. Co., 201 S.W. 940; St. Louis v. Wiggins Ferry Co., 40 Mo. 580; Herryford v. Aetna Ins. Co., 42 Mo. 148; Sidway v. Mo. Land & Inv. Co., 187 Mo. 649; Farnsworth v. Terre-Haute, 29 Mo. 75; Fitzmaurice v. Turney, 214 Mo. 610; Slavens v. Southern Pacific R. Co., 51 Mo. 308; Harding v. Chicago & Alton R. Co., 80 Mo. 659; Crutsinger v. Mo. Pac. R. Co., 82 Mo. 64; Rodgers v. Nat. Council, 172 Mo. App. 719; Hartell v. Am. Ry. Exp. Co., 225 S.W. 131; Kalamazoo Loose Leaf Binder Co. v. Curran Ptg. Co., 242 S.W. 982; Young v. Niles & Scott Co., 122 Mo. App. 392; Dean Rapid Telegraph Co. v. Howell, 162 Mo. App. 100; Secs. 2741, 5074, 5077, R.S. 1939; State ex rel. Duckworth v. District Court, 80 Pac. (2d) 367; Ex parte Blumer, 27 Tex. 734; Arndt-Ober v. Met. Opera Co., 169 N.Y. Supp. 944, 182 App. Div. 513; Stadtmuller v. Miller, 11 Fed. (2d) 732; Bowring v. Bowers, 24 Fed. (2d) 918; People v. McClay, 2 Neb. 7; King of Prussia v. Keupper's Administrator, 22 Mo. 550; Secs. 655, 871, R.S. 1939. (b) The common sense view. State ex rel. v. Harris, 121 S.W. (2d) 141, 343 Mo. 252; Bloom v. Mich. Salmon, etc., Co., 104 Pac. 324; Sanders v. Farmers State Bank, 228 S.W. 635; Starke Adv. Agency v. Adams, 64 Atl. 990; State v. Dist. Court, 176 Pac. 613; State ex rel. v. Dist. Court, 139 N.W. 135; The Resolute, 14 Fed. (2d) 232; Woodsum Steamboat Co. v. Town of Sunapee, 69 Atl. 577; Board of Councilmen of City of Frankfort v. Stone, 58 S.W. 373; Bristol v. Chicago, etc., R. Co., 15 Ill. 436; Baltimore, etc., Turnpike Road v. Crowther, 1 Atl. 279; Thorn v. Central R. Co., 26 N.J.L. 121; General Baking Co. v. Daniell, 166 N.Y. Supp. 1070; Jameson v. Simonds Saw Co., 84 Pac. 289.

TIPTON, J.

Prohibition to Honorable John F. Cook, Judge of the Circuit Court of Jackson County, Missouri, at Kansas City, Division No. 2, to prevent him from exercising jurisdiction over the person of the relator in the case of Forest Lumber Company v. Northwestern Mutual Fire Association.

The plaintiff in that case is a corporation organized under the laws of the State of Delaware, and the defendant, or relator, is a mutual insurance company organized under the laws of the State of Washington. The action was based upon a fire insurance policy issued by relator to plaintiff, and plaintiff's petition alleges that plaintiff and defendant are licensed to do business in the States of Missouri and Oregon, and that plaintiff's main office is in Jackson County, Missouri; that the fire insurance policies sued on were executed and delivered in the State of Oregon and are Oregon contracts; that the property insured against damage or loss by fire was located in the State of Oregon and that the loss claimed occurred in the State of Oregon.

Summons was issued to the sheriff of Cole County, Missouri, and return was made that he had served same upon the Superintendent of the Insurance Department of the State of Missouri. At the return term, relator appeared specially and moved to quash the summons and return on the ground that, on the face of the petition, it appeared the action was not one authorized by Section 6005, R.S. (Mo.) 1939, and therefore the purported summons and return were invalid and conferred no jurisdiction over the person of the relator. The case was duly assigned to the respondent, who overruled the motion to quash.

On September 25, 1941, this court issued its preliminary rule in prohibition and respondent's return admitted all factual allegations of relator's petition, but contended that plaintiff below, though a Delaware corporation, is a resident of Missouri, within the meaning of Section 6005, R.S. (Mo.) 1939; that the suit is therefore within such section and that jurisdiction of the person of relator was acquired by service of the Superintendent of Insurance and that he was not exceeding his jurisdiction in proceeding with the case. To this return, relator filed its motion for a judgment on the pleadings.

The sole question for our determination is, is a foreign corporation, licensed to do business in Missouri, a resident of this State within the meaning of that word as it is used in Section 6005, R.S. (Mo.) 1939? In other words, is a foreign corporation that has complied with Sections 5072, 5073, and 5074, R.S. (Mo.) 1939, a resident of this State as that word is used in Section 6005, supra?

That section provides that a foreign insurance corporation may be served by a delivery of a copy of the petition and summons to the Superintendent of Insurance at his office in Jefferson City, Missouri, "and service as aforesaid shall be valid and binding in all actions brought by residents of this state upon any policy issued or matured, or upon any liability accrued in this state, or on any policy issued in any other state in which such resident is named as beneficiary, and in all actions brought by nonresidents of this state upon any policy issued in this state in which such nonresident is named beneficiary or which has been assigned to such nonresident and in all actions brought by nonresidents of this state on a cause of action, other than an action on a policy of insurance, which arises out of business transacted, acts done, or contracts made in this state." (Italics ours.)

Since the policy of insurance sued on was executed in the State of Oregon, it is an Oregon contract. The alleged loss occurred in the State of Oregon. Therefore, to come within the provision of the above quoted part of Section 6005, the plaintiff must be a resident of the State of Missouri.

The relator contends that since the plaintiff is a Delaware corporation, it can only be a resident of that state, and cannot be a resident of this State. It cites Fletcher Cyclopedia on Corporations, Volume 8, Chapter 48, Section 4025, and Volume 17, Chapter 67, Section 8300; 1 Thompson on Corporations (3 Ed.), page 795; certain federal decisions and decisions from other states which hold that legal existence, the home, the domicile, the habitat, the residence, the citizenship of the corporation can only be in the state by which it was created, notwithstanding it may lawfully do business in other states. [Germania Fire Insurance...