State v. United States Mutual Accident Ass'n

Cassodat, J.

Are the facts stated such as to make the service upon Bombach good as against the defendant ? In our judgment they are. The defendant is a foreign accident insurance corporation. It never procured a license to do business in this state, as required by the statutes. Secs. *627 1220, 1953, R. S. It is provided by sec. 2637, R. S., that actions against corporations shall be commenced in the same manner as personal actions against natural persons.. The summons, etc., shall be served, and such service held of the same effect as personal service on a natural person, by delivering a copy thereof as follows: . . (9) If against any insurance corporation not organized under the laws of this state, to the agent or attorney thereof having authority therefor by appointment under the provisions of section 1915 or section 1953, or to any agent of such corporation within the definition of section 1977, in' the state.” Here, the summons could not have been served on the defendant by delivering a copy thereof to the agent or attorney appointed by the defendant under the provisions of ■ sec. 1915 or sec. 1953, since no such appointment was ever made. It follows that such service could only be made by delivering such copy to an agent of the defendant within the definition of sec. 1977, R. S. By that definition, whoever solicits insurance on behalf of any insurance corporation, or transmits an application for insurance or a policy of insurance to or from any such corporation, or who makes any contract of insurance, or collects or receives any premium for insurance, or in any manner aids or assists in doing either, or in transacting any business for any- insurance corporation, or advertises to do any such thing, shall he held am, agent of such corporation to all intents and purposes; and the word agent, whenever used in ch. 89, R. S.,- shall be construed to include all such persons. Sec. 1977, R. S.

The several things thus enumerated are connected by dis-junctives, so that the doing of any of them by Bombach would have made him the agent of the defendant, within the definition. State v. Farmer, 9 Wis. 459 . The facts stated show that he did every one of them himself, unless it was to make the contracts of insurance mentioned; and the facts stated show that he aided and assisted in making each *628 of them, which of itself was enough to make him such agent, within the definition.

As to the commencement of actions or service of process upon foreign insurance corporations, this is in no respect changed by ch. 240, Laws of 1880, notwithstanding sec. 5 of that act is nearly in the same language as sec. 1977, R. S. It simply makes it a misdemeanor to act as such agent otherwise than as prescribed. This was fully considered and determined in State v. Northwestern Endowment & Legacy Ass’n of Minn. 62 Wis. 176, 177 . But here Bombach received a commission on each of the policies mentioned as issued by the defendant, and hence the question of his acting “ gratuitously,” there considered, is not here involved. By receiving and retaining such applications and premiums, and then issuing to the respective beneficiaries policies thereon, and then sending the same to Bombachfor delivery, the defendant thereby ratified his agency.

If the argument of counsel, to the effect that sec. 1977 only relates to agents of such foreign insurance companies as are duly licensed to do business _ within this state, is sound, then there would be,.no possible way of commencing an action against an unlicensed foreign insurance company doing business in this state in violation of law. In other words, such construction would reward such foreign insurance companies as refused to pay the requisite license, by enabling them to retain the license money and then shielding them from the enforcement of all liability, whether on their contracts or otherwise, in the courts of Wisconsin. Such construction would defeat the whole purpose and scope of the statute. Besides, such construction would restrict the application of the section wholly to home insurance companies and' such foreign insurance corporations as procure the requisite license; whereas the language of the section is, “ any insurance corporation,” “ any contract of insurance,” “any premium for insurance,” “any business *629 for any insurance corporation,” and tlien enlarges the word “agent” whenever used in other portions of the chapter so as “to include all such persons” as are therein described. The chapter evidently applies to foreign insurance companies not having probured such license, as well as those which have. Thus sec. 1952 applies to “ every life or accident insurance corporation doing business in this state . . . upon the principle of mutual insurance.” Sec. 1953 applies to “ every life or accident insurance' corporation not organized under the laws of this state.” Sec. 1954 applies to “every life or accident insurance corporation doing business in this state.” Manifestly it was not the intention of the legislature that the right of serving process upon foreign insurance companies doing business within this state should be dependent upon their first taking out a license.

The courts of other states have taken a similar view of similar statutes. Gibbs v. Queen Ins. Co. 63 N. Y. 114 ; Pope v. Terre Haute, C. & M. Co. 87 N. Y. 137 ; Osborne v. Shawmut Ins. Co. 51 Vt. 278 ; McNichol v. U. S. Mercantile R. A. 74 Mo. 457 ; Swift v. State, 25 Am. Law Reg. (N. S.), 594 ; Lhoneux v. Hong Kong & S. B. Corp. L. R. 33 Ch. Div. 446.

Foreign insurance companies are not compelled to do business in this state. If they voluntarily choose to do so, however, they must submit to such conditions and restrictions as the legislature may see fit to impose. Fire Department v. Helfenstein, 16 Wis. 136 ; State ex rel. Drake v. Doyle, 40 Wis. 176 .

In Paul v. Virginia, 8 Wall. 168 , a person, having acted as an agent of an insurance company doing business in that state without a license under a similar act, was convicted and fined under the statute; and it was held that there had been no violation of sec. 2, art. IY, Const, of U. S., providing that “ the citizens of each state shall be entitled to all privileges and immunities of citizens in the several states;” nor of sec. 8, art. I, giving to Congress the power “to regulate *630 commerce with foreign nations, and. among the several states.” In that case, Mr. Justice Field, speaking of foreign insurance companies, for the whole court, used this significant language: “ Having no absolute right of recognition in other states, but depending for such recognition and enforcement of its contracts upon their assent, it follows as a matter of course that such assent may be granted upon such terms and conditions as those states may think proper to impose. They may exclude the foreign corporation entirely; they may ¿restrict its business to particular localities; or they may exact such security for the performance of its contracts with their citizens as in their judgment will best promote the public interest. The whole matter rests in their discretion.” Page 181. This language was expressly sanctioned by the same learned court in Ducat v. Chicago, 10 Wall. 410 ; Liverpool Insurance Co. v. Massachusetts, 10 Wall. 566 ; and in the very recent ease of Philadelphia Fire Ass’n v. New York, 119 U. S. 117 , 118. The same language was quoted approvingly in the opinion of this court in State ex rel. Drake v. Doyle, 40 Wis. 197, 198 .

From these decisions it appears that by voluntarily doing business in the state the defendant voluntarily submitted itself to the laws of the state. Prom them it further appears that the question of interstate commerce is in no way involved in such a case; and hence it is distinguishable from Cooper Manuf'g Co. v. Ferguson, 113 U. S. 727 , and other similar cases.

The defendant’s right to impeach the sheriff’s return by other evidence includes the plaintiff’s right to support such return by similar evidence. We conclude that the court got jurisdiction of the defendant by the service upon Bom-bach.

The question, however, is not before us as to just what subject-matter such jurisdiction may extend to. It is enough to know that there may be cases to which such jurisdiction *631 extends. Ganser v. Fireman’s Fund Ins. Co. 34 Minn. 372 , and cases there cited; Ehrman v. Teutonia Ins. Co. 1 McCrary, 123 ; S. C. 1 Fed. Rep. 471; Merchants’ Manuf’g Co. v. Grand Trunk R. Co. 13 Fed. Rep. 358; Gray v. Taper Sleeve Pulley Works, 16 Fed. Rep. 437.

By the Gourt.— The order of the circuit court is affirmed.