Western Travelers Accident Ass'n v. Taylor

Norval, C. J.

I dissent for the reasons stated in the following opinion of Hastings, C.:

Two questions are presented in this case: First, whether this action was prematurely brought; and, second, whether the county court of Douglas county had jurisdiction, and by consequence the district court on appeal. The first question would seem not difficult.

This is an action against an insurance company upon an accident policy which provides that no action shall be brought until ninety days after furnishing proofs of injury. Proofs were furnished on the 30th of September, and this action commenced on December 28, following. If ninety days were absolutely required between the filing of the proof and the institution of the action, evidently it was prematurely commenced, and should abate. Plaintiff in error quotes Judge Brewer, in Cobb v. Insurance, Co. of North America, 11 Kan., 93, to the effect that this provision in a policy is a credit, and its expiration therefore marks the maturity of the cause of action. Our own court seems not to have so regarded it. Judge Mitchell, in Hand v. National Live-Stock Ins. Co., 57 Minn., 519, 59 N. W. Rep., 538, declares this is not an extension of credit, but a privilege given for the purpose of examining proofs and investigating the loss which may be waived, by the party, and the expiration of which is not strictly the “due day" *801of the contract. This has been repeatedly held in Nebraska. Omaha Fire Ins. Co. v. Dierks, 43 Nebr., 473; German Ins. & Savings Institution v. Kline, 44 Nebr., 395; Omaha Fire Ins. Co. v. Hildebrand, 54 Nebr., 306.

On December 28, 1895, the plaintiff below, as assignees, wore claiming through Cook, the injured party, $514; the company’s secretary offered $440 or $450. The assignees were threatening to bring suit, and were distinctly told that no more would be offered. There is testimony that they were also told that the company recognized no liability, would pay this amount for a settlement, and if it was no't satisfactory they might sue. The offer was not accepted, and suit commenced. After its commencement the offer was raised to $465, but was not accepted. The secretary says that he never denied the existence of some liability, but does not deny telling plaintiffs below that the offer would not be raised, and if not accepted they might sue. This seems to be a sufficient waiver of further time to consider the proofs.

In deciding as to the jurisdiction more difficulty has been found. The company was organized, and has its principal place of business in Grand Island, Nebraska. It does business throughout the state, in the way of taking travelers’ accident insurance, but had no agency in Douglas county, and no resident agent there. Its secretary and manager was temporarily there at the time this summons was served, engaged in the attempt to settle this very claim, as to which the unsuccessful negotiations are stated above. Summons was served upon him," a special appearance was made in the county court, which was overruled. Lack of jurisdiction was set up in the answer in that court, and this defense found against, as well as the other one, that the action was prematurely brought. On appeal the same defenses were again set. up, and again overruled by the district court, and this court is now asked to find that there was no jurisdiction over the defendant in Douglas county, and no authority to institute the action there. The writer of this opinion has not been *802able to reach that conclusion. The subject of process and jurisdiction over domestic corporations is absolutely under the control of the legislature. Railroad Co. v. Hecht, 95 U. S., 168. General grants of jurisdiction not restricted in terms to natural persons are held to apply to artificial persons also. Fresno Nat. Bank v. Superior Court, 83 Cal., 491, 24 Pac. Rep., 157; Van Dresser v. Oregon R. & N. Co., 48 Fed. Rep., 202; Holgate v. Oregon P. R. Co., 16 Ore., 123, 17 Pac. Rep., 859. The statutes which have relation to this matter are section 55, of.the Code of Civil Procedure, as follows: “An action other than the one of those mentioned in the first three sections of this title, against a corporation created by the laws of this state, may be brought in the county in «Inch it is situated or has its principal office or place of business; but if such corporation be an insurance company, the action may be brought in the county where the cause.of action, or some part thereof, arose”; section 60 of the Code of Civil Procedure, as follows: “Every other action must be brought in the county in which the defendant, or some one of the defendants, resides, or may be summoned”; and section '73 of the Code, as follows: “A summons against a corporation may be served upon the president, mayor, chairman of the board of directors or trustees, or other officer; or, if its chief officer is not found in the county, upon its cashier, treasurer, secretary, clerk, or managing agent; or, if none of the aforesaid officers can be found, by a copy left at the office, or last usual place of business of such corporation.” No complaint is made in this case that the officer served was not one of those mentioned in section 73. There could not well be raised such an objection, for an inspection of the by-laws shows that in the intervals of the meetings of the executive board of the company the secretary has the entire charge of its affairs; he is its managing officer. He Avas, at the moment this summons was served, negotiating with full power to settle this very claim. It seems clear, therefore, that section 60 of the Code, giving jurisdiction in any *803county where defendant may be summoned, would apply to this case, unless section 55 is to be construed as limiting the provisions of section 60. That section 55 has no such effect, but is remedial, is indicated, first, by its phraseology, which uses the word “may” where sections 54 and 60 employ the word “must,” and where section 51 has the phrase “shall be brought only in the county,” etc.

It is further indicated by the repeated decisions of this court. In the case of Insurance Co. of North America v. McLimans, 28 Nebr., 653, service was made upon the local special agent of a foreign company in Madison county, upon a cause of action which had arisen in the state of Iowa. Sections 55 and 914 of the Code were cited to the point that the Madison county district court had no jurisdiction. The objection was overruled, and section 55' was declared to be remedial and not restrictive, and the jurisdiction complete. The case was reaffirmed in Springfield Ins. Co. v. McLimans, 28 Nebr., 848. In Fremont Butter & Egg Co. v. Snyder, 39 Nebr., 632, the contention that a corporation can only be sued where it has its principal place of business, and that “may” in section 55 means “must,” is expressly overruled, and it is stated that section 55 was enacted for the benefit of creditors and persons having claims against domestic corporations. In Council Bluffs Canning Co. v. Omaha Tinware Mfg. Co., 49 Nebr., 537, the assertion of jurisdiction on the part of the court is justified under section 59, and also under section 60, neither of which would apply in that case if section 55 is to be held restrictive. There seems no question that these cases all contemplated that section 55, instead of restricting the operation of section 60, operates for its enlargement, and that by consequence the same rule is applicable to corporations as to individuals, viz., that they are subject to an action in any county where they may be regularly and lawfully summoned. The same doctrine is upheld as to federal corporations under a federal law somewhat similar. Van Dresser v. Oregon R. & N. Co., 48 Fed. Rep., 202.

*804We are cited to a large number of cases presenting rulings with regard to foreign corporations. It is evident that as to those a different rule must prevail from that relating to domestic ones. An officer of a foreign corporation, as such, in the absence of any express delegation of authority, would have no power beyond the jurisdiction of the laws creating his corporation, and providing for his office. But even this distinction would not prevail where the officer was traveling and present in the jurisdiction with express authority in reference to and for the purpose of dealing with the particular subject-matter of the action. Council Bluffs Canning Co. v. Omaha Tinware & Mfg. Co., supra; Houston v. Filer & Stowell Co., 85 Fed. Rep., 757. A municipal officer traveling beyond his municipality would come under a different rule. He is distinctly a territorial officer. His jurisdiction has territorial limits. He is not authorized unless specially empowered, to do anything on behalf of his municipality outside of its OAvn limits, and by consequence no service can be there had upon him in its behalf. Pack, Woods & Co. v. Greenbush Township, 62 Mich., 122. There was no such limitation on the powers of the secretary of this company. He Avas as much its secretary in Douglas county as in Hall county. He could by virtue of his office make any settlement or write any new policy there. He was in Douglas county transacting business of his principal with relation to this very claim. Section 73 of the Code seems to authorize sendee of summons upon him there, and if such service was authorized, then, under section 60, the institution of the action in Douglas county against this corporation should be held as proper as it would be against an individual who could be there summoned. Why should not corporations and other persons stand on this same footing? Works, Jurisdiction of Courts, pp. 319, 323.

It has been suggested that the provisions of section 60 apply only to “other” cases, and, therefore, not to cases against, corporations which are previously mentioned in section 55. Aside from the express holdings above men*805tioned, that section 55 is not so restrictive of section 60, it would seem tliat a sufficient reference for tbe words “all other cases” can be found in the various sections absolutely fixing jurisdiction of various forms of action.

Note. — Statutes in derog'ation of common law are to be strictly construed. Handy v. Brong, 4 Nebr., 60, 62, opinion by Gantt, J. Statutes in derogation of common law should not be strictly construed. Buclcmaster v. McBlroy, 20 Nebr., 557, 564, opinion by Cobb, J. — Reporter. Day, C., concurs.