State v. Grimm

• Decision Date: 23 December 1911
• Citation: 143 S.W. 483
• Parties: STATE ex rel. PACIFIC MUT. LIFE INS. CO. v. GRIMM, Circuit Judge.
• Court: Missouri Supreme Court

143 S.W. 483

STATE ex rel. PACIFIC MUT. LIFE INS. CO. v. GRIMM, Circuit Judge.

Supreme Court of Missouri.

December 23, 1911.

Rehearing Denied January 27, 1912.

1. INSURANCE (§ 627) — FOREIGN INSURANCE COMPANIES — ACTIONS — SERVICE OF PROCESS.

The only mode by which a foreign insurance company may be served with process in the state is as prescribed in Rev. St. 1909, § 7042, authorizing service of process on the superintendent of insurance designated by foreign

insurance companies as agent to receive service of process.

2. INSURANCE (§ 627) — FOREIGN INSURANCE COMPANIES — ACTIONS — SERVICE OF PROCESS.

Rev. St. 1909, § 7042, requiring foreign insurance companies doing business in the state to file with the superintendent of insurance a power of attorney appointing said superintendent as its agent to receive service of process, and providing that the service of process on the superintendent shall be deemed personal service on the company, so long as it has policies outstanding, authorizes service of process on the superintendent in an action against a foreign insurance company doing business in the state, brought by a nonresident on a policy executed and delivered in a sister state to a resident thereof, and such service gives the court jurisdiction over the company.

3. APPEARANCE (§ 9) — GENERAL APPEARANCE — ACTS CONSTITUTING.

A defendant, who moves to quash service of process and return thereof, and to dismiss the action because of matters of defense outside the record as to which he tenders issues by verified plea, and which if heard on the merits will require the introduction of evidence, enters a general appearance, and the service of process on him will not be quashed.

4. APPEARANCE (§ 19) — SPECIAL APPEARANCE — GENERAL APPEARANCE.

The right of a defendant to make a special appearance is not a substantial one inherently existing, but is a privilege which must be exercised under the rules of procedure, and a defendant who appears to deny jurisdiction over his person, which would exist but for the failure to pursue the proper methods for bringing him into court, must confine himself to that particular issue, and, where he raises the question of the jurisdiction of the court over the subject-matter in a transitory action, he voluntarily submits himself to the jurisdiction of the court.

5. COURTS (§ 14) — JURISDICTION — ACTION BY NONRESIDENT AGAINST FOREIGN CORPORATIONS.

Where the court should decline jurisdiction of an action by a nonresident against a foreign corporation doing business in the state on the ground that the witnesses reside in a sister state and will not obey subpœnas because not required to do so by the laws of the sister state, a party asking the court to decline jurisdiction on that ground must establish the fact of disobedience of the nonresident witnesses of service of process.

6. COURTS (§ 14) — JURISDICTION — ACTION BY NONRESIDENT AGAINST FOREIGN CORPORATION.

The court should not decline to take jurisdiction of an action by a nonresident against a foreign corporation doing business in the state, merely because plaintiff will not be seriously injured by the court declining jurisdiction.

7. COURTS (§ 14) — CONSTITUTIONAL LAW (§ 207) — JURISDICTION — ACTION BY NONRESIDENT AGAINST FOREIGN CORPORATION.

Rev. St. 1909, §§ 1736, 1737, providing that, when a cause of action has accrued under the laws of any state, the cause of action may be brought in any of the courts of this state by the persons entitled to bring such action by the laws of the state where the cause of action accrued, etc., are mandatory and in harmony with Const. U. S. art. 4, § 2, and amendment 14, declaring that the citizens of each state shall be entitled to all the privileges and immunities of citizens of the several states, etc., and compel a court to entertain jurisdiction of an action by a nonresident against a foreign corporation on a cause of action accruing in a sister state.

8. COURTS (§ 14) — JURISDICTION — ACTION BY NONRESIDENT AGAINST FOREIGN CORPORATIONS.

An action by a nonresident beneficiary on an accident policy issued by a foreign corporation doing business in the state and in a sister state, to a nonresident of the sister state, is founded on a valid contract and is a transitory action, and the courts of Missouri must take jurisdiction.

Valliant, C. J., and Graves, J., dissenting.

In Banc. Prohibition by the State, on relation of the Pacific Mutual Life Insurance Company, against J. H. Grimm, Judge of the Circuit Court of the City of St. Louis, to prohibit respondent from further proceeding with the trial of a cause pending in court. Denied.

This is an original proceeding instituted in this court by the petitioner, seeking to prohibit the respondent, as judge of the circuit court of the city of St. Louis, from further proceeding with the trial of the case of Florence W. Rawn v. Pacific Life Insurance Company, the petitioner, now pending in said court.

Because of the unsettled or undetermined facts of the case, in order to get a full and correct view of the legal propositions presented by the record, it will be necessary to set out the petition filed in this court, asking for a preliminary rule of prohibition, and the return thereto filed by the respondent. All formal parts wherever appearing will be omitted. The petition for the writ of prohibition is as follows:

"Now at this day comes the petitioner, the Pacific Life Insurance Company, and shows to this honorable court that it is a corporation, duly organized and existing under the laws of the state of California, and duly licensed to do business in this state, in the state of Illinois, and elsewhere; that the respondent, the Honorable J. Hugo Grimm, during the times hereinafter mentioned, was, and at the present time is, the duly elected, qualified, and acting judge of the circuit court for the Eighth judicial circuit of Missouri and judge of division No. 1, of said court; that heretofore, on the 14th day of March, 1911, there was commenced in said court an action at law by one Florence Willis Rawn, as plaintiff, against your petitioner, as defendant, to recover the sum of $14,000, with interest and costs; that summons was issued by the clerk of said court; that said summons was served upon the superintendent of the insurance department of the state of Missouri on the 15th day of March, 1911, as appears from the return of the sheriff attached to the petition in said case; that thereafter said case was duly assigned to division No. 1 of said court, of which division the respondent is judge.

"Said petition is in words and figures as follows:

"`Plaintiff, for her cause of action against defendant, alleges that:

"`(1) Defendant is a corporation, organized under the laws of the state of California, having an office in the city of Chicago, Ill., and was and is duly authorized to transact business in the states of Illinois and Missouri, and is engaged in the business of general life insurance, including insuring lives against death caused by accident.

"`(2) On or about February 6, 1910, defendant, at its principal place of business in Chicago, in the state if Illinois, made and executed its certain instrument in writing, dated on that day, and numbered 1060317, commonly called a policy of accident life insurance, and afterwards, on said day, for a valuable consideration to it paid by Ira G. Rawn, at said Chicago, delivered said policy to said Ira G. Rawn, and thereby then and there in and by said policy defendant promised to pay to plaintiff the sum of $10,000, together with a further sum as accumulations as hereinafter stated, in the event of the death of said Ira G. Rawn from bodily injuries sustained during the life of said policy through accidental means resulting directly, independently, and exclusively of all other causes in said death, if said death occurred within 90 days of the date of said injury. A copy of said policy, together with certain indorsements thereon, is attached hereto as "Exhibit A."

"`(3) Said policy provided that upon the payment of each successive year's premiums on said policy, if paid annually in advance, the principal sum of said policy should be increased by 10 per cent. thereof. Said policy was issued in continuation of a former policy of insurance for the like amount, and said former policy, of which the present one is a continuation, was originally issued on the 6th day of February, 1906, and annual premiums were paid thereon from that time down to and including the premium paid on February 6, 1910, and it was agreed that said policy numbered 1060317 should have like force and effect as if dated February 6, 1906. Attached to said policy, and forming part thereof, is a document providing that said policy of life insurance should bear accumulations of 10 per cent. annual increase, the same as and with like effect as if said policy had been dated on February 6, 1906, and premiums had been paid thereon. A copy of said last-mentioned document, or rider, is attached to this petition as "Exhibit B." By reason of said provisions of said policy and the payment to defendant of premiums becoming due for renewal of said insurance in February, 1907, 1908, 1909, and 1910, the amount defendant promised to pay plaintiff on the death of said Ira G. Rawn as aforesaid was increased by the sum of $4,000.

"`(4) On February 1, 1906, and from then until the death of said Ira G. Rawn, as hereinafter mentioned, plaintiff was the wife of said Ira G. Rawn and the beneficiary named in said policy, and during all that time she and said Ira G. Rawn were citizens of the state of Illinois and residents of Chicago aforesaid.

"`(5) On July 20, 1910, said Ira G. Rawn received bodily injuries through accidental means, namely, a bullet wound through the body, and such injuries resulted directly, independently, and exclusively of all other causes in the death of said Ira G. Rawn on the day last aforesaid.

"`(6) Plaintiff, as the...