Tomson v. Iowa State Traveling Men's Association
| Citation | 129 N.W. 529,88 Neb. 399 |
| Decision Date | 24 January 1911 |
| Docket Number | 16,564 |
| Parties | ISABELLE MCHENRY TOMSON, APPELLEE, v. IOWA STATE TRAVELING MEN'S ASSOCIATION, APPELLANT |
| Court | Supreme Court of Nebraska |
APPEAL from the district court for Lancaster county: WILLARD E STEWART, JUDGE. Reversed.
REVERSED.
Sullivan & Sullivan, T. J. Doyle and G. L. De Lacy, for appellant.
Burr & Marlay, contra.
From a judgment in plaintiff's favor for the death by accident of her husband, defendant appeals.
A concise statement of the accident is given in Western Travelers' Accident Ass'n v. Tomson, 72 Neb 661, 101 N.W. 341. A sufficient statement of the issues will appear in the discussion of the different assignments hereinafter considered.
We find at the very threshold of the case an objection to the jurisdiction of the court. Two reasons are assigned in support of this objection: (a) That no summons was ever served upon defendant, or upon any authorized agent of defendant; (b) that defendant was not at the time of the service of the summons, and in fact has never been, engaged in business in Nebraska. It appears that summons was served upon one Charles E. Latshaw, who was a Nebraska member of the defendant association, and who at the request of the defendant had solicited business for it, in one instance taking the application, collecting the admission fee and transmitting the application and fee to defendant company at its office in Des Moines, upon which application a certificate of membership was issued. The secretary of defendant testified:
In the affidavit of Mr. Latshaw, introduced upon the hearing of the motion to quash the service and return of summons, he testified that with each notice of assessment he received from defendant a blank application for membership and a request from the home office that he obtain new members in said company; that this has been the invariable rule of the company since he has been a member; that he has known of a great many new members being obtained by old members through this method; that between the 20th of March and the 20th of April, 1904, he received from the company such a blank application and request, and acting thereon he solicited one Louis Klein to become a member of defendant company; that he took the blank which had been sent him, filled it out, and obtained Mr. Klein's signature thereto; that Mr. Klein gave him an order upon his employer for the $ 4 membership fee; that he took the order to Mr. Klein's employer, who gave him a check for the amount; that he collected the amount of the check, remitted the amount, together with application, to defendant at Des Moines, and that defendant issued to Mr. Klein a certificate of membership on that application. We think this constituted Mr. Latshaw an agent of defendant upon whom service of summons could be made. The fact that he received no compensation from defendant for soliciting business for it is immaterial. In Taylor v. Illinois Commercial Men's Ass'n, 84 Neb. 799, 122 N.W. 41, we sustained a service of summons under very similar conditions. See, also, State v. Northwestern Endowment & Legacy Ass'n, 62 Wis. 174, 22 N.W. 135; State v. United States Mutual Accident Ass'n, 67 Wis. 624, 31 N.W. 229; and Sadler v. Mobile Life Ins. Co., 60 Miss. 391, in which the Mississippi court say that In like manner we say that foreign companies may select their agents or representatives upon whom service of summons may be made in the manner provided in section 5, ch. 16, Comp. St. 1909, but, failing to do this, the law converts into agents, upon whom process may be served, any and all persons doing any of the things named in section 8, ch. 16, Comp. St. 1909, the performance and fruits of which acts are accepted by the company. We therefore hold that the service of summons was properly made in this case.
The second contention of defendant, that the company was not doing business in Nebraska, is equally untenable. Among the exhibits introduced in evidence upon the hearing of the objection to jurisdiction were the 23d and 24th annual reports of defendant company. The former shows that during the year from December 6, 1902, to December 5, 1903, the defendant paid accident claims to 50 Nebraska certificate holders, and the latter shows that for the next year it paid accident claims to an additional 50 residents of Nebraska. If the company were doing so fortunate a business that the assessments upon each member amounted to only $ 9 a year, as stated in their numerous circulars introduced in evidence, and they paid 100 accident claims in two years, it is quite apparent that it must have a large membership in this state; for it is a matter of common knowledge that only a small percentage of persons carrying accident insurance are ever so unfortunate as to be called upon to present claims against the companies in which they are insured. In the light of this record, we think it is a juggling of terms to claim that the company is not doing business in Nebraska, simply because, in violation of our statutes, it has never complied with the law by regularly appointing agents to represent it in this state. In John Deere Plow Co. v. Wyland, 69 Kan. 255, 76 P. 863, the first paragraph of the syllabus reads: "A single transaction by a foreign corporation may constitute a doing of business in this state within the meaning of section 1283, Gen. St. 1901, making certain requirements of foreign corporations doing business in the state, where such transaction is a part of the ordinary business of the corporation, and indicates a purpose to carry on a substantial part of its dealings here." See, also, Pennsylvania Lumbermen's Mutual Fire Ins. Co. v. Meyer, 197 U.S. 407, 49 L.Ed. 810, 25 S.Ct. 483.
It is next insisted that no facts are averred in the petition of a contract upon the part of the defendant to pay plaintiff $ 5,000, or any other sum, on account of death. The petition is not as full and explicit as it might or probably should have been. Had it been assailed by motion or demurrer, plaintiff would doubtless have been compelled to supply the defects, and, as the judgment must be reversed upon another point and the case remanded for further proceedings, they doubtless will be supplied.
It is next objected that plaintiff, as administratrix, is not the real party in interest; that the agreement of the company was to pay in case of accidental death to the beneficiary named in the application, if any, and, if none, then to the heirs of the member. The certificate of membership, which was the only document in plaintiff's possession at the time of the commencement of the action, did not disclose the beneficiary. The application, which she had never seen, was in the custody of defendant. The heirs of Mr. Tomson at the time of his decease were plaintiff herself and a son. It appears from the application of Mr. Tomson that plaintiff was named therein as beneficiary, and it is argued that for that reason she could only maintain an action in her individual name. If she had not been named in the application as beneficiary, then the certificate would have been payable to the heirs of the deceased, which in this case would have been the son. By bringing the present action as administratrix, Mrs. Tomson has effectually foreclosed herself from ever asserting any individual right of action against the defendant, and has in effect joined the son with herself as plaintiffs. She thereby in effect assigns to the son a portion of her cause of action; and, inasmuch as she is herself prosecuting the action for the benefit of herself and the son, she has joined as plaintiffs every person who could in any event have been a beneficiary. This did not therefore prejudice any one but plaintiff herself, and defendant cannot complain. Moreover, the petition upon that point was not in any manner assailed until the commencement of the trial, when it was included in the objections to the introduction of any evidence, above set out. Up to that time defendant had recognized plaintiff, in her capacity as administratrix, as the real party in interest and the one entitled to prosecute the action. In its answer it admits her appointment and qualification as administratrix, admits the issuance of certificate to deceased and his death, and in paragraph 9 alleges that "said plaintiff as beneficiary under the contract sued on did not notify defendant of the death or make proof of death," etc.; thus by its pleading expressly recognizing plaintiff, as administratrix, as the real party in interest and the one entitled to prosecute the action.
It is next objected that the court erred in permitting plaintiff to offer segregated portions of defendant's...
To continue reading
Request your trial
-
Tomson v. Iowa State Traveling Men's Ass'n
...88 Neb. 399129 N.W. 529TOMSONv.IOWA STATE TRAVELING MEN'S ASS'N.No. 16,564.Supreme Court of Nebraska.Jan. 24, Syllabus by the Court. A foreign fraternal accident company or association may select its agents upon whom process may be served, in the manner provided in section 5, c. 16, Comp. S......