State v. Landwehr

• Decision Date: 23 November 1927
• Docket Number: No. 28271.,28271.
• Citation: 300 S.W. 294
• Parties: STATE ex rel. AMERICAN CENT. LIFE INS. CO. v. LANDWEHR, Circuit Judge.
• Court: Missouri Supreme Court

300 S.W. 294

STATE ex rel. AMERICAN CENT. LIFE INS. CO. v. LANDWEHR, Circuit Judge.

No. 28271.

Supreme Court of Missouri, in Banc.

November 23, 1927.

Original proceeding in prohibition by the State of Missouri, on the relation of the American Central Life Insurance Company, against Frank Landwehr, Judge of the Circuit Court of St. Louis City, Division No. 1. Provisional rule made absolute.

Edward C. Crow and Jones, Hooker, Sullivan & Angert, all of St. Louis, for relator.

James J. O'Donohue, of St. Louis, for respondent.

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 1 of the circuit court of the city of St. Louis. Under the provisions of section 7991, R. S. 1899 (now section 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, Mo., 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 1. 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 1, 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, R. S. Mo. 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 cases 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 awn 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 Company 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 service upon the company, and shall authorize the same proceedings as in case of other actions at law; the process shall be served and returned in the same manner, as if the action were against the agent or agents personally."

It will be noted that the designation of agents for the service of process was limited to process in suits instituted by persons "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."

By the fourth subdivision of section 1, c. 84, of the Revised Statutes of 1855, it was provided that a foreign insurance company, doing business in this state, should file with the county clerk of the county, where it proposed to do business, a resolution "authorizing any person having a claim against such company, growing out of a contract of insurance made in this state, with the agent, or agents, thereof doing business in this state, to sue such company for the same, in any court of this state having competent jurisdiction," etc., and authorizing service upon such agents.

The provisions of the 1845 and the 1855 statutes are practically identical. The latter made it more certain that service upon such companies should be limited to actions brought upon contracts of insurance made in this state. The 1845 statutes used the words, "made with the agent or agents of any such company aforesaid doing business in this state," while the 1855 statute used the words, "made in this state, with the agent, or agents, thereof doing business in this state."

Chapter 90. § 3, subd. 4, of the General Statutes of Missouri for 1865, contained exactly the same provisions found in the 1855 statutes quoted above. In view of the provisions of the statutes of 1845, 1855, and 1865, there cannot be the slightest doubt that the legislative policy of the state at that time was to limit actions, which could be brought in this state and in which service could be had upon agents of foreign insurance companies, to those actions which were based upon contracts of insurance made by such companies in this state and to deny the right to bring, and to obtain service in, actions based upon such contracts of such foreign insurance companies made outside of this state.

In 1869 the General Assembly rewrote the law in respect to life insurance companies. Laws of 1869, § 31, p. 38, provided as follows:

"No such company mentioned in the preceding section, shall transact any such business as aforesaid, by any agent or agents in this state, unless it shall first file with the Superintendent of the insurance department a written instrument or power of attorney, duly signed and sealed, authorizing any and every agent that is or may be acting for such company in this state to acknowledge service of process for and in behalf of such company in this state, and consenting that service of process upon any such agent, shall be taken and held as valid as if served upon the company according to the laws of this or any other state; and that in case any such assurance company shall cease to transact business in this state, any person who has acted as such agent, shall be considered and held as continuing to be agent for such company, for the purposes of process as aforesaid, in any action against the company, upon any policy or liability issued or contracted during the time such company transacted business in this state."

There had been no provision in prior statutes in any way similar to that contained in the words we have italicized. Also, for the first time, the right to sue foreign insurance companies...