United States Life Ins. Co. v. Ross

• Decision Date: 01 June 1900
• Citation: 102 F. 722
• Parties: UNITED STATES LIFE INS. CO. v. ROSS.
• Court: U.S. Court of Appeals — Fifth Circuit

102 F. 722

UNITED STATES LIFE INS. CO. v. ROSS.

United States Court of Appeals, Fifth Circuit.

June 1, 1900

Geo Clark and D. C. Bolinger, for plaintiff in error.

W. S Baker, S. P. Ross, and D. H. Hardy, for defendant in error.

Before PARDEE, McCORMICK, and SHELBY, Circuit Judges.

McCORMICK Circuit Judge.

On October 21, 1897, J. E. Ross, the defendant in error administrator of R. L. Long, deceased, brought his action against the United States Life Insurance Company, the plaintiff in error, in the state district court of Limestone county, Tex., to recover the sum of a policy of insurance alleged to have been issued to the intestate, with legal interest thereon, and 12 per cent. damages, and a reasonable attorney's fee. The cause was duly removed into the circuit court of the United States for the Northern district of Texas, and such proceedings were had therein as resulted in a judgment in favor of the defendant in error.

The specifications of error relied on to reverse this judgment are: (1) That the court erred in overruling the motion of the plaintiff in error to suppress the deposition of J. W Harris, and in admitting that deposition to be read in evidence over the objection of the plaintiff in error; (2) that the court erred in instructing the jury to return a verdict for the defendant in error, over the objections of the plaintiff in error, made at the time, for the reason that the evidence in this case was conflicting as to whether the policy of insurance sued upon had been delivered to plaintiff's intestate during his lifetime. Six errors are assigned, but the foregoing statement is the substance of the contention made by the plaintiff in error in this court.

In the circuit court the plaintiff in error made two motions to suppress the deposition of the witness J. W. Harris, the first of which was filed on April 1, 1898, and the ground of this motion was that the deposition was taken without giving the plaintiff in error legal notice thereof. The United States Life Insurance Company is a corporation organized under the laws of the state of New York. On the 7th day of October, 1893, by an agreement in writing, it appointed James W. Harris, of Waco, Tex., its agent for all that part of the state of Texas in which it authorizes its agents to do business (except a certain portion then under contract to A. J. Miller, of Ft. Worth), and at or about the same time it constituted and appointed him its attorney to receive and accept service of process agreeably to the statute laws of that state. On the 15th of January, 1897, it duly renewed this appointment. The written agreement constituting Harris the agent of the insurance company in Texas provided, among other things, that either party thereto might terminate it by giving to the other 30 days' notice in writing to that effect. Acting on this provision, the insurance company gave notice to Harris of the termination of their contract, and it became complete, and the contract terminated, on the 9th of September, 1897. On September 25, 1897, and again on October 6, 1897, the counsel who now appear for the defendant in error wrote to the plaintiff in error demanding the payment of the amount of the R. L. Long policy. On October 16, 1897, the plaintiff in error, by its actuary, William T. Standen, addressed a letter to Hon. Jefferson Johnson, insurance commissioner of the state of Texas, advising him that:

'Mr. J. W. Harris, of Waco, Tex., is no longer our manager, and subagents working for him, and for whom you issued licenses, no longer represent this company in that way. We therefore ask you to promptly revoke the licenses and power of acceptance on behalf of this company issued to Mr. Harris and all the subagents above referred to, as we have now no accredited representative working for us in your state.'

On October 19, 1897, Commissioner Johnson acknowledged the receipt of this letter of revocation of authority of Mr. J. W. Harris and other agents to represent the company in Texas, and said, 'Their certificates of authority and power to accept service have been canceled by this office. ' On October 22, 1897, the commissioner wrote again to the plaintiff in error to this effect:

'Gentlemen: After a consultation with the attorney general, we are of opinion that you have no right to cancel or order the cancellation of the powers of attorney to your agents in this state. The intent of the law is that no life insurance company shall be permitted to transact business or to collect premiums upon policies in force in the state of Texas without having an attorney appointed in the state to accept service from such policy holders as may have a legal claim against the company. You may regard our letter accepting your cancellation as having no authority, as we now declare these powers of attorney as being good, unless you shall appoint an attorney for service at once in this state. We await your action in this matter before taking any further steps. It will not be profitable for the United States Life Insurance Company to undertake to avoid suit by the method you have seen fit to follow.

'Yours, very truly,

Jefferson Johnson, Commissioner.'

On October 23, 1897, the proper notice for taking the deposition of J. W. Harris, with a copy of the interrogatories, and a precept to serve the same, was issued to the sheriff of McLennan county, Tex., and on the 25th of October was duly received by him, and served on J. W. Harris and W. W. Seley as agents of the United States Life Insurance Company. W. W Seley is the president and sole owner of the Waco State Bank in Waco. On two or three occasions (the dates not given) the plaintiff in error had forwarded to the Waco State Bank claims upon its policy holders for premiums, etc., which were collected by the bank in the usual course of business, but not as agent for the United States Life Insurance Company, except for the special collection of each particular claim as received in the usual course of bank collections. This motion to suppress the deposition of J. W. Harris came on to be heard on the 22d of April, 1898, and the court, having heard the motion, the answer of the plaintiff thereto, and the argument of counsel thereon, was of opinion that the motion was not well taken, and on April 27, 1898, ordered that the same be overruled; to which ruling the defendant (the plaintiff in error), by its counsel, excepted, and tendered its bill of exceptions. In this bill of exceptions it is stated that on the hearing of this motion 'it was further shown that the plaintiff never at any time received notice from the defendant company of the appointment of Jefferson Johnson as its attorney to receive service in lieu of the said Harris, and only received notice of said appointment of said Johnson from the said Johnson himself on or about October 30, 1897. It was admitted by the defendant that immediately upon notice of the appointment of said Johnson as the defendant's attorney to receive service in lieu of said Harris, which was after the perfection of service on said Harris and said Seley, the plaintiff caused service of notice and copies of interrogatories to be made on the said Johnson as the defendant's attorney, and that upon the expiration of the five days provided by the laws of the state of Texas for service of notice and copies of interrogatories...