State v. Gantt

• Court: Missouri Supreme Court
• Writing for the Court: Faris
• Citation: State v. Gantt, 274 Mo. 490, 203 S.W. 964 (Mo. 1918)
• Decision Date: 17 May 1918
• Docket Number: No. 20428.,20428.
• Parties: STATE ex rel. STANDARD FIRE INS. CO. OF HARTFORD, CONN., v. GANTT, Circuit Judge.

203 S.W. 964

274 Mo. 490

STATE ex rel. STANDARD FIRE INS. CO. OF HARTFORD, CONN., v. GANTT, Circuit Judge.

No. 20428.

Supreme Court of Missouri. In Banc.

May 17, 1918.

1. CONSTITUTIONAL LAW—WHO MAY QUESTION CONSTITUTIONALITY OF LAW.

A foreign insurance company which had filed a power of attorney to accept service with the state superintendent of insurance pursuant to Rev. St. 1909, 7042, could not urge the unconstitutionality of that statute in connection with its objection to jurisdiction acquired by service upon such officer, for, since if the statute was void it would not affect or repeal Rev. St. 1879, § 6013, requiring such a company to designate some person as its agent to accept process, it would be immaterial whether the designation of such officer was under one statute or the other. (Per Graves, C. J., and Faris and Walker, JJ.)

2. INSURANCE — FOREIGN INSURANCE COMPANIES—STATUTE.

Rev. St. 1909, § 7042, requiring foreign insurance companies to designate the superintendent of insurance as attorney in fact to accept service, is a service statute, and not a venue statute. (Per Graves, C. J., and Faris and Walker, JJ.)

3. INSURANCE — FOREIGN CORPORATION S—ACTIONS—VENUE.

Under Rev. St. 1909, § 1754, as to venue of suits against corporations, a foreign insurance corporation is suable either in the county where the cause of action arose or in any county where it has an agent for the transaction of business. (Per Graves, C. J., and Faris and Walker, JJ.)

4. STATUTES — SPECIAL LAWS — FOREIGN CORPORATIONS—ACTIONS—VENUE.

Rev. St. 1909, § 7042, providing for service upon the superintendent of insurance as agent of a foreign insurance company, if construed as destroying the effect as to such companies the clause of section 1754, authorizing suit in any county where a corporation has an agent for doing business, would render it unconstitutional as a special statute changing the venue in civil cases, contrary to Const. art. 4, § 53, subd. 4. (Per Faris and Walker, JJ.)

5. CONSTITUTIONAL LAW — INSURANCE —:SERVICE ON FOREIGN CORPORTION—DUE PROCESS.

Rev. St. 1909, § 7042, as to service of process upon foreign insurance corporations, is not a violation of the "due process of law" of Const. U. S. Amend. 14, § 1, since it permits such a corporation to be sued where any corporation is suable. (Per Graves, C. J., and Faris and Walker, JJ.)

Graves, C. J., dissenting in part. Woodson, J., dissenting.

Original proceeding by prohibition by the State of Missouri, at the relation of the Standard Fire Insurance Company of Hartford, Conn., against Hon. Ernest S. Gantt, Judge of the Circuit Court of Audrain County, Eleventh Judicial Circuit. Writ quashed.

This is an original proceeding by prohibition, whereby it is sought to prohibit respondent, as judge of the circuit court of Audrain county, from taking further action in a certain cause wherein the St. Louis Carbonating & Manufacturing Company is plaintiff and relator herein is defendant. The facts necessary to an understanding of the points involved are few and simple, and run substantially thus:

The said St. Louis Carbonating & Manufacturing Company (hereinafter for brevity called "Carbonating Company") is a Missouri corporation, having its principal office and place of business in the city of St. Louis. At and prior to the 22d day of May, 1917, the Carbonating Company held a policy of fire insurance in the relator company for the sum of $1,000, which policy insured for one year certain property of the Carbonating Company located in the city of St. Louis. This property so covered by the insurance policy aforesaid was on the date stated above damaged by fire. Thereafter, and upon relator's refusal to pay the sum set out in said policy of insurance, plaintiff brought suit thereon in the circuit court of Audrain, county, Mo. Summons in said action was issued out of the Audrain county circuit court, sent to the sheriff of Cole county, and by said sheriff served upon W. K. Chorn, superintendent of the insurance department of the state of Missouri. Thereafter, and on the 3d day of September, 1917, relator, who was the defendant in the insurance action, filed in the circuit court of Audrain county what it denominates a special entry of appearance for the purpose of excepting to the jurisdiction of that court, and a motion to quash service and dismiss the cause for want of such jurisdiction. Pertinent parts of relator's said motion, which more adequately and correctly than any mere excerpt therefrom would do state relator's position and the precise nature of its attack upon the jurisdiction of the Audrain circuit court, read thus:

"That the bringing and maintenance of this suit in this honorable court is an abuse of the jurisdiction of this court, designed by plaintiff to employ a judicial agency in the state of Missouri to compel defendant to submit to disadvantages and inconveniences in the trial of its just defenses to plaintiff's alleged cause of action. That by section 1 of the Fourteenth Amendment to the Constitution of the United Stales it is provided: `No state shall make or enforce nay law which shall abridge the privileges or immunities of citizens of the United States, nor shall any state deprive any person of life, liberty or property without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws.' That section 30, art. 2, of the Constitution of Missouri, provides: `That no person shall be deprived of life, liberty or property without due process of law.' That section 10, art. 2, of the Constitution of Missouri, provides: `Section 10. Courts of Justice Must be Open. The courts of justice must be open to every person, and certain remedy afforded for every injury to person, property or character, and that right and justice should be administered without sale, denial or delay.' That section 53, art. 4, of the Constitution of Missouri, provides that: `The General Assembly shall not pass any local or special law. * * * (4) Changing the venue in civil or criminal cases.' That the bringing and maintenance of this suit in this honorable court by the plaintiff is in pursuance of the exercise by said plaintiff of an asserted right to institute its alleged cause of action in any county in this state without restriction and according to the choice and judgment of plaintiff as to which county in said state would best suit said plaintiff's purposes and interests, and for the purpose of compelling defendant to make its defenses away from the scene of the facts and the evidence and in a community where the jurors are drawn generally and usually from the class engaged in agricultural pursuits and unfamiliar with the usual and ordinary conditions surrounding the issue and performance of contracts or policies of fire insurance in said city of St. Louis. That therefore there has been no proper or lawful service of summons in this cause upon this defendant, and that said attempted service is null and void for the reasons herein set forth. That under and by virtue of the laws of this state (Revised Statutes of Missouri 1909, § 7042) defendant delivered, prior to the institution of this suit, to the superintendent of insurance of the state of Missouri, a power of attorney authorizing said officer to receive the service of summons in suits instituted against it in the courts of this state in compliance with the laws of Missouri, as averred in said petition. Defendant further states that said issue and delivery of summons herein to said officer was unauthorized by said statute and said power of attorney for the reason that said suit was not instituted in said city of St. Louis, state of Missouri, wherein plaintiff's alleged cause of action accrued, and wherein the same should be prosecuted."

This motion of relator to dismiss for lack of jurisdiction and to quash service for the same reason was overruled, and the circuit court of Audrain county was proceeding, as relator avers, with the hearing of said cause; whereupon relator applied to this court and we issued our preliminary rule in prohibition. To this preliminary rule respondent duly made return, which return admits all material facts to be as pleaded in relator's petition. Thereupon relator moved for judgment upon the pleadings, which leaves the cause to be determined upon the law as applied to the facts stated in relator's petition. The unconstitutionality of section 7042, R. S. 1909, is also urged by relator, in addition to matters set out in the excerpt which we quote from its motion and which are bottomed on averred lack of jurisdiction. The facts making clear this constitutional attack will be set forth fully in our discussion of the case, as will also such further facts as may be necessary to make clear what we shall say.

Leahy, Saunders & Barth, of St. Louis, for relator. Fauntleroy, Cullen & Hay, of St. Louis, for respondent.

FARIS, J. (after stating the facts as above).

Counsel for relator insist that the precise question involved in this action is one of first impression in this state. There have been, they concede, suits brought by nonresidents against foreign insurance companies (cf. Gold Issue, etc., Co. v. Pennsylvania Ins. Co., 267 MO. 524, 184 S. W. 999), wherein the contention was made that no court of this state had jurisdiction; cases wherein a nonresident sued, in a personally selected or hand-picked forum, a licensed and localized foreign business corporation (State ex rel. v. Jones, 270 Mo. 230, 192 S. W. 980 [not yet officially reported]); likewise a case wherein an action was brought before a justice of the peace of one county by a resident of another county against a licensed foreign insurance company (Meyer v. Insurance Co., 184 Mo. 481, 83 S. W. 479); but no case such as this, wherein it is admitted that jurisdiction lies at the domicile of plaintiff, where the cause of action accrued, but denied that it lies in each of the 114 counties of this...