Spangler v. Ridgeley Protective Ass'n , 172 Mo. App. 255 ( 1913 )

TRIMBLE, J.

The respondent is a foreign insurance company authorized to do business in this State, and has duly authorized the Superintendent of Insurance to accept service for it in any suit against it in this commonwealth. It had no local agent in Clinton county or elsewhere upon whom service could be obtained.

Appellant brought suit on one of its policies before a justice of the peace in Clinton county and service was had upon the Superintendent of Insurance at Jefferson City in Cole county. On June 8th judgment was rendered by the justice against the respondent, and on June 24, sixteen days later, the respondent filed its affidavit and bond for appeal to the circuit court which was allowed and proper notice thereof given to appellant.

In the circuit court the appellant filed a motion to dismiss the appeal because it had not been taken within the ten days allowed a resident defendant in which to appeal. The respondent contended that as the appeal had been taken within the twenty days allowed non-residents, the motion should be overruled. The trial court took this view and overruled plaintiff’s motion to dismiss. Whereupon, plaintiff refusing to proceed further, the court dismissed the case and plaintiff appealed.

Section 7568 R. S. Mo. 1909, provides that if the appealing party he a non-resident of the county where the suit shall he instituted, the party shall in all cases of appeal allowed by this article, have twenty days to make such appeal.”

By section 7042 R. S. Mo. 1909 it is provided that “ . . . in case such process is issued by a justice of the peace or other inferior court, the same may be directed to and served by any officer authorized to serve process in the city or county where said superintendent shall have his office at least fifteen days before the return day thereof, and such service shall confer jurisdiction.”

It is contended by appellant that this section makes every foreign insurance company in the State a resident of every county in the State. And that since by this statute it is a resident of each county, it must perfect its appeal within the ten days -allowed other residents. But it will be noticed that it does not say a foreign company shall be deemed a resident of the county,' but only that service on the superintendent shall confer jurisdiction. The company is not regarded as a resident since only ten days service is required on other residents while fifteen days is required on the company. Said section 7042 relates not to residence but solely to service of summons and jurisdiction. This jurisdiction comes by reason of the foreign company having voluntarily submitted to it by filing the power of attorney with the superintendent. This power of attorney does not authorize the superintendent to do anything to bind the company beyond the mere receipt of service. And the liability of the company or the restrictions and limitations on the company by reason of such statute and power of attorney cannot be. stretched or extended beyond the terms of the statute.

The decisions holding that railroad companies organized in another State are residents of every county through which they run and in which they have an agent upon whom process can be served, and must, therefore, appeal within ten days, are not strictly applicable to the situation here, since the railroad statute recognizes that the corporeal entity of the railroad is actually present and therefore can be said to reside in each county in which it has or usually keeps an office or agent for the transaction of its usual and customary business. Sec. 1754 R. S. Mo. 1909. And the reasoning of all the cases holding that railroads are residents of all such counties is based on the fact that its residence is not in one place only but is wherever “its officers and agencies are actually present in the exercise of its franchises and in carrying on its business, and depends on the- official exhibition of legal and local existence.” Slavens v. Railroad, 51 Mo. 308, 1. c. 309. In other words, the presence in the county of the railroad’s visible tangible form, with its officers and agents exercising official rights and duties and carrying on the corporate enterprise, gives the railroad a local situs and residence the same as an actual resident of the county. And all the decisions since the Slavens case base their holding on the same reasoning. This would not appear to be necessary if the bare force of the statute conferring jurisdiction to sue were all that was necessary to make them residents.

We have been unable to find any case holding that a company, having no agent in the county, is deemed a resident of such county to the extent of being required to appeal in ten days, although, by force of Sec. 7042, jurisdiction to sue in such county is given upon service of summons on the Superintendent of Insurance. Nor have counsel cited to us any. The nearest case to it is that of Young v. Niles-Scott Co., 122 Mo. App. 392. But in that case the defendant, although a non-resident, had an agent in the county engaged in carrying on the corporate functions and enterprise and in charge of the manufacturing plant of defendant located -in the county where suit was brought, and service was had upon such agent. And it is upon this fact that the court based its holding that the defendant was a resident of said county and must appeal in ten-days like other residents. But the statute, in the case at bar, on its face does not consider foreign insurance companies as residents of the county when authorized to do business in the State, since the time in which the writ may be made returnable is beyond that required for residents. It is true a number of cases are cited in which it is said that a foreign insurance company, by obtaining authority to do business in the State, makes itself a resident of every county in the State, but they are all cases dealing with the question of jurisdiction or the right of the plaintiff to sue and the trial court to proceed in the particular county. In the case of Curfman v. Fidelity & Deposit Co., 152 S. W. 126, the question was one of jurisdiction only, that is, the right of plaintiff to bring the suit, and of the trial court to proceed, in Nodaway county. And Ellison, J., in that case, in very careful and precise terms, said that “for the purpose of venue in civil actions” the defendant was a resident of Nodaway county; and that the suit had been properly brought against the Surety company, “as though such Surety company was a resident of Nodaway county.” In other words, the defendant by virtue of the statute and the power of attorney filed with the Superintendent of Insurance, became a resident of the county for the purpose of venue only, the sole object the statute had in view. The sole purpose of filing the power of attorney is to show the consent of the company to be subject to such venue and jurisdiction conferred by the statute. This being the case, the liability and restrictions thrown about the company should not be stretched or extended by judicial construction beyond tbe plain and necessary intendment of tbe statute. Under sucb construction Section 7042 fully brings its benefits to claimants against insurance companies, and at tbe same time is not unfair to non-resident litigants by taking away tbeir right to twenty days in wbicb to file appeal as granted to them under Section 7568, R. S. Mo. 1909. Tbe judgment is affirmed.

All concur.