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Johnston v. Mutual Reserve Life Insurance

104 A.D. 544 Court N.Y. App. Div. English

Delivered by Laughlin, J.:

Contents

Majority

p. 544
Henry P. C. Johnston, Respondent, v. Mutual Reserve Life Insurance Company, Appellant. (Actions No. 1, 2, 3, 4, 5, 6, 8, 9, 11.)

Headnote

Insurance—a power of attorney given by non-resident insurance, companies to the' Insurance Commissioner of a State—it is irrevocable while obligations to citizens of that State remain outstanding. ' '•
The power of attorney given by' the Mutual Reserve Life Insurance Company to the Insurance Commissioner of the State of North Carolina, constituting that Officer its agent for the purpose of receivings service of process in 'actions brought against it, is not revocable by such insurance company, as long as any obligation of the company remains outstanding to the citizens of that State, regardless of whether it ceases to do business therein or not. . ■ .
/Appeal by the defendant, the Mutual Reserve Life Insurance ' Company, in each of the above-entitled actions,"from an order of the Appellate 'Term of the Supreme Court, entered in the office of the clerk of the county of New York on the 18th day of November, 1904, affirming a judgment of the City Court of'the city of New York in favor of the plaintiff, entered in the office of the clerk of. said court on the 25th day of February, 1904, and also affirming an order of the said City Court entered on the 1st day of February, 1904, granting the plaintiff an extra allowance.
These are actions upon assigned judgments for sums of money recovered in the Superior Court of North Carolina, a court of general jurisdiction; The summons in each of the actions in which the judgments were recovered in North Carolina was served by the sheriff upon James R. Young, the Commissioner of' Insurance of that State.. Prior to the entry of judgment the defendant appeared specially in the Superior Court of North Carolina and moved to set aside the service of the summons and dismiss the action ‘upon the ground that the service was invalid owing to the fact, as claimed by the defendant, that prior to the service the letter' of attorney appointing the Commissioner of Insurance an agent of the defendant for service of process within the State had been revoked, and ,that the defendant had ceased-to do any business within the State, and it invoked the protection of the 5th and 14th amendments to the Federal Constitution. -
In actions .Nos. 1, 2, 3, 4, 6, and 9 the court made findings
p. 545
of fact, embodied in a decision which appears in the judgment roll, finding, among other things, the revocation of the power of attorney from the defendant to the Commissioner of Insurance and upon that ground granting the motion and thereupon judgment was entered dismissing the complaint. The plaintiff in each case appealed to the Supreme Court of North Carolina where the judgment was reversed. (Moore v. Life Association, 129 N. C. 31 .) The statute of North Carolina permitting foreign insurance companies to do business within that State provided as a condition upon which such authority was granted that the insurance company •should first file with the Commissioner of Insurance a power of attorney constituting him or his successor its attorney for the service of process within the State and stipulating that such authority should continue in force irrevocable “ so long as any liability of the company remains outstanding in this Commonwealth.” (Public Laws of N. C. of 1899, chap. 54, § 62, subd. 3.) The Supreme Court of North Carolina held that the power of attorney filed pursuant to this statute was irrevocable regardless of the continuance of business by the company within that State so long as any liability contracted by the company remained outstanding within the State whether such liability was contracted before or after the filing of the power ■of attorney. (See also : Biggs v. Life Association, 128 N. C. 5 .) In each of the cases in which the motion to set aside the service and dismiss the complaint was granted and in which the judgment was reversed on appeal, the plaintiff subsequently brought the case on for trial in the Superior Court. The complaint was verified and •contained an allegation that the defendant was a foreign insurance company, but that it was doing business within the State. The defendant failed to answer and the facts alleged in the complaint were adjudged to be true and judgment was awarded in favor of the plaintiff, as by default, and the case was continued for the purpose of assessing the damages. Thereafter the damages were assessed and final judgment was entered which recites that the defendant was duly served with the summons; that it appeared specially to set aside the service of the summons and gives the subsequent proceedings thereon ; that judgment was awarded in favor of the plaintiff and the case continued for the assessment of dam
p. 546
ages,, and that the damages had been duly assessed and that the plaintiff was entitled to recover of the defendant the amount thereof which was specified, together with interest and costs to be taxed. After the reversal in the Supreme Court the defendant ■ likewise' moved to set aside the service and dismiss actions Nos. 5, 8 and .11. The court made like finding as in the other and, following the decision of, the Supreme Court, denied the motions. These actions were subsequently brought to trial and the subsequent pro- ■ ceedings therein were the same as in the actions in which an appeal had been taken. '
In addition to the facts already stated to have been found by the Superior Count in each of these cases on the motion to set aside the seiwice of the' summons, the court, on deciding said motion further, found that the contracts to recover damages for the breach. of which the actions were brought were made between the respective ■ plaintiffs who were citizens and residents of North Carolina at the " time when the action was brought, and the defendant in that State through agents duly authorized to represent it; that the defendant was a foreign corporation organized under the laws of New York, having its principal office and place of business in New York city ; that the power, of attorney was filed on the 12th day of April, 1899; that between the 1st day of January, 1883, and the l-7th day. of May, 1899, the defendant was actively engaged in the insurance business in the State of North Carolina issuing or delivering, through duly authorized agents in that State; certificates or policies of insurance payable to citizens/ of that State at the home office of the defendant in New York; the certificates or’policies were not to take effect until the first assessment should be received at the home , office; that between the date of filing the power of attorney and the 17th day of May, 1899, the defendant at its home office in New York, issued a large number of such certificates- or policies to citizens of North Corolina payable at said home office, which were delivered through agents of the defendant in • North Carolina, and between said dates continued to collect the premiums on all its outstanding certificates or policies in North Carolina, including those issued before and those after the date of filing said power of attorney and continued to adjust and pay its losses in said. "State; that bn the 17th;day of May, 1899, -the directors- of the defendant, in
p. 547
form, adopted a resolution revoking the power of attorney to l!he Insurance Commissioner assigning as a reason therefor the enactment by the Legislature of the State of North Carolina of a statute (Public Laws of N. C. of 1899, chap. 62) known as the “ Craig Bill ” requiring foreign insurance companies, as. a condition of carrying on business in said State, to become domestic corporations of that State, and on or about the 20tli day of May, 1899, delivered to the Insurance Commissioner a duly certified copy of said resolution; that since the 17th day of May, 1899, and until the date of the service of the summons the defendant had no agent in the State but permitted its members or policyholders to remit their premiums or assessments by mail to the home office, where the same were received and not elsewhere, and at its home office and not elsewhere adjusted and paid death losses upon certificates or policies issued in North Carolina by checks drawn on a New York bank and transmitted to the beneficiaries through the mail and not otherwise; that the revocation of the power of attorney was made in good faith for the reason assigned in the resolution ; that the certificates or policies of insurance for the breach of which the actions were brought were delivered prior to the 17th day of May, 1899, through an agent of the defendant then representing the defendant in the State of North Carolina based bn applications made and signed in that State but acted upon in New York where they were issued and made payable and where all dues and assessments were q>ayable; that since the 17th day of May, 1899, the defendant had done no business of any kind through agents or otherwise in the State of North Carolina; that, in each case the summons was duly served upon the Commissioner of Insurance, who upon service of the summons upon him duly notified the secretary of the defendant of such service and duly forwarded therewith a copy of the summons so served.
The actions in North Carolina were brought by the parties to the contract of insurance, but these actions brought in the City Court upon the foreign judgment were brought by an assignee of the respective plaintiffs of the actions in North Carolina. Upon the trial in the City Court the plaintiffs offered exemplified copies of the respective judgment rolls in evidence, also certain statutes of North Carolina relating to the authority of a foreign insurance company
p. 548
to do business in that State, including the statute requiring the filing of a power of attorney with the Commissioner of Insurance and other statutes relating to the service of procéss, and the power of attorney filed with the Commissioner of Insurance. These were objected to upon the ground, among others, that the judgments were void. The objections were overruled and. the evidence received. The plaintiff was also permitted, over the defendant’s objection and .exception, to introduce further evidence tending to show that at the time of the service of process in North Carolina the defendant was doing, business within that State within the authority of the decision of the Supreme Court of the United States in- Mutual Reserve Fund Life Association v. Phelps (190 IJ. S. 147). The defendant then proved its permit to do business in the State of North Carolina, the attempted revocation of the power of attorney and the service of the resolution upon the Insurance Commissioner, the said Craig Bill and the revocation of its agencies within North Carolina prior to the service of the process x in these cases.
Frank R. Lawrence, for the appellant.
Gilbert E. Roe, for the respondent.

The respondent, while contending that the facts found as shown by the judgment roll of the court in North Carolina established that the defendant was doing business in that State at the time of the service of process within the authority of Mutual Reserve Fund Life Association v. Phelps ( 190 U. S. 147 ) and cases there cited, and that the designation of the agent alone was sufficient; also contends that he had a right — when the jurisdiction of the court upon the face of the judgment roll was questioned, before the Phelps case had been reported and before the decision in Woodward v. Mutual Reserve Life Ins. Co. ( 84 App. Div. 324 ) had been reversed ( 178 N. Y. 485 ) — to introduce further evidence on the trial here tending to save the cases from the doctrine announced by this court in the Woodward case. The appellant contends that the jurisdiction of the court cannot be sustained by evidence dehors the record; and that it was error to receive this evidence. In the view we take of the case it is unnecessary to decide these questions,

p. 549
for we are of opinion that the Superior Court of North Carolina obtained jurisdiction, and, if so, it is immaterial that evidence tending to show jurisdictional facts has been unnecessarily or errolieously received on the trial in this State.

It lias been held not only by the Supreme Court of North Carolina, but by the Supreme Court of the United States and by our Court of Appeals as well, that this power of attorney.was not revocable by the discontinuance by the defendant of business within the State or otherwise so long as any liability of the company to citizens of North Carolina existed, and that the attempted revocation was futile. (Moore v. Life Association, 129 N. C. 31 ; Biggs v. Life Association, 128 id. 5; Mutual Reserve Fund Life Association v. Phelps, 190 U. S. 147 ; Woodward v. Mutual Reserve Life Ins. Co., 178 N. Y. 485 .) With that proposition settled in favor of the plaintiff, the only questions requiring consideration on these appeals are whether the respective judgment rolls show service of process upon the Commissioner of Insurance, and, if not, whether the Superior Court of North Carolina, being a court of general jurisdiction, it will be presumed that service of process was-duly made. The defendant contends that it was essential to the jurisdiction of the North Carolina court that- the defendant was doing business within the State at the time of the service of process. _ It appears to us, however, that this point requires no further consideration, for it necessarily follows from the decision in the Woodward and Phelps Cases (supra) that the courts of North Carolina could obtain jurisdiction over this defendant by service of process on the Commissioner of Insurance, regardless of its continuing to do business in that State, and such is clearly the effect of the power of attorney which it filed pursuant to the requirement of the statute.

In each of the eases now under consideration, as appears in the. statement of facts, the court found, on the preliminary motion to set aside the service of the summons and dismiss the action, that the defendant duly filed a power of attorney with the Commissioner of Insurance, as required by the statute; that the summons was duly served upon him as required by the statute, and by him duly forwarded to the defendant, and in the final judgment it is recited that the summons was duly served upon the defendant. There can be

p. 550
no doubt, therefore, that the judgment rolls in these cases show that the court obtained,jurisdiction and that the j’udgments are valid. Full faith and credit must, therefore, be accorded them, pursuant to the requirements of the Federal Constitution and statutes. (U. S. Const, art. 4, § 1; U. S. R. S. § 905.)

In each of these cases an additional allowance of costs has been awarded to plaintiff; we think these allowances' were properly made.

It follows that the determination in each case should be affirmed, with costs.

Van Brunt, P. J., Patterson, Ingraham and McLaughlin, JJ., concurred. .

Determination affirmed, with- costs.

Cases cited

Statutes and regulations cited