Taylor v. Illinois Commercial Men's Association

• Decision Date: 25 June 1909
• Docket Number: 15,575
• Citation: Taylor v. Illinois Commercial Men's Association, 84 Neb. 799, 122 N. W. 41 (Neb. 1909)
• Parties: ETTA TAYLOR, APPELLEE, v. ILLINOIS COMMERCIAL MEN'S ASSOCIATION, APPELLANT
• Court: Nebraska Supreme Court

122 N.W. 41

84 Neb. 799

ETTA TAYLOR, APPELLEE, v. ILLINOIS COMMERCIAL MEN'S ASSOCIATION, APPELLANT

No. 15,575

Supreme Court of Nebraska

June 25, 1909

APPEAL from the district court for Colfax county: JAMES G. REEDER JUDGE. Affirmed.

AFFIRMED.

John J Sullivan and James Maher, for appellant.

C. J Phelps and H. P. Peterson, contra.

OPINION

ROOT, J.

Action upon an accident insurance policy. Plaintiff prevailed, and defendant appeals. In May, 1906, defendant issued an accident insurance policy on the life of Breffelt F. Taylor, and plaintiff is the beneficiary in said policy. On the 6th of August, 1906, the assured died as a result of injuries inflicted by a stroke of lightning.

1. Defendant is an incorporated foreign insurance company, and alleges that process was not served upon its agent. Plaintiff resided in Colfax county, and, upon defendant's refusal to pay the insurance claimed by her, a cause of action, if any existed, arose in that county. In accord with section 59 of the code the proper venue in Nebraska for this action was Colfax county. Nebraska Mutual Hail Ins. Co. v. Meyers, 66 Neb. 657, 92 N.W. 572. Defendant alleged "that the sheriff's return to the effect that the summons in this action was served upon defendant by delivering a copy thereof to its agent, Leonard P. Bauderman, in Colfax county, Nebraska, is a false return and confers upon this court no jurisdiction," etc. It is further alleged that Bauderman is not and never was defendant's agent for any purpose. Plaintiff's reply traverses those allegations. The pleadings thereby presented for the jury's consideration the issue of Bauderman's agency. The burden was upon defendant to negative the return of the sheriff, and its counsel evidently so understood, because he demanded, and over plaintiff's objection was given, the opening and closing in the trial of the case. Neither the summons nor the return thereto appears in the bill of exceptions. All defendant's evidence to rebut the sheriff's return may be found in defendant's by-laws, one question propounded to its secretary, and his answer thereto. The by-laws provide that defendant's business shall be transacted in Chicago, but do not forbid its officers appointing agents. In fact, without such representatives, defendant's business would languish and the object for which it was created would be defeated. The secretary was asked: "Q. Has the Illinois Commercial Men's Association any agents, general, special, or of any kind, empowered to solicit insurance for it, to accept members for it, or to receive assessments and dues for it?" He answered: "It has not. All its business must be transacted at its offices in Chicago, Illinois." This testimony is insufficient to exculpate defendant. It attempts to negative Bauderman's agency for specific purposes; that is, that he did not have authority to solicit insurance, accept members, or receive assessments for it. The secretary did not state that Bauderman had not performed any of those acts in Colfax county for defendant, nor that, if he had attempted to do so, it had rejected the fruits of his labors. The secretary testified to his conclusions. Just what facts would constitute Bauderman defendant's agent according to the logic of the witness we do not know. Section 6407, Ann. St. 1907, provides: "Any person or firm in this state who shall receive or receipt for any money on account of or for any contract of insurance made by him or them, or for any such insurance company or individual aforesaid, or who shall receive or receipt for money from other persons to be transmitted to any such company or individual aforesaid, for a policy or policies of insurance or any renewal thereof, although such policy or policies of insurance may not be signed by him or them, as agent or agents of such company, or who shall in anywise, directly or indirectly, make or cause to be made any contract or contracts of insurance, for or on account of such company aforesaid, shall be deemed, to all intents and purposes, an agent or agents of such company, and shall be subject and liable to all the provisions of this chapter." The record is barren of evidence to demonstrate that within the meaning of the law Bauderman was not the agent of defendant in Colfax county at the time the sheriff served process in this action upon him. The defense is technical, and should not be held sufficient unless it responds to every fact essential to establish the immunity sought. Defendant is in the attitude of collecting premiums from the residents of Nebraska, and denying to the courts of this state the right to protect its citizens and enforce defendant's contracts, and its defense to the jurisdiction of the district court will not be supported by intendment. In the state of the record, we hold that the trial court was right in not submitting the first defense to the jury.

2. The defense upon the merits is that Taylor, in order to induce defendant to issue the policy in suit, made the following warranty and promise in his application for insurance "I understand that if I shall hereafter change my business or vocation from that herein stated, that I must immediately notify the secretary of the association of such change, as provided in article II, section 7 of by-laws." The by-law is as follows: "Whenever any member of this association shall change his business or vocation he shall immediately thereafter send to the secretary a written notice of such change, and the association shall, at its discretion, continue or cancel the membership of such new member, and his membership shall cease and determine on the tenth day after such change without action of the board of directors, unless he shall in the meantime have sent such written notice." Defendant alleges that, when said policy was issued, Taylor's business or vocation was that of a commercial traveler, and he was not engaged in any other business or vocation; that for more than 30 days preceding his death he had entirely and permanently abandoned his said business or vocation,...