(dissenting). — I cannot concur in the majority opinion. The facts of the case and the questions raised are as follows:
Plaintiff is alleged to be an Arizona corporation, and defendant is alleged to be a Pennsylvania corporation, doing a general fire insurance business. The petition is an ordinary petition upon a fire insurance policy, issued by defendant to plaintiff in the State of Colorado. The property is alleged to have been destroyed by fire during the life of the policy.
This suit was brought in Audrain County, Missouri, and there tried, resulting in a judgment for the plaintiff in the sum of $2689.57, the amount of the policy for $2500 and interest thereon. Service of summons in the case was had by the sheriff of Cole County, Missouri, delivering a copy of the petition and summons to Frank Blake, the then Superintendent of the Insurance Department of Missouri.
Preserved in the bill of exceptions by the plaintiff, we have the motion to quash the service in this cause, which motion reads:
“Now comes the defendant herein and appearing for the purposes of this motion and for the purposes of this motion only, moves to quash the writ herein issued and the return thereon by the sheriff of Cole County and dismiss the cause for the following reasons, to-wit:
“1. The circuit court of Audrain County and no other court of the State of Missouri has jurisdiction over the person of the defendant herein nor over the subject-matter of said action.
“The plaintiff is a corporation existing under the laws of the Territory of Arizona, but attempting to engage in business in the State of Colorado and also attempting, according to the allegations of the petition herein filed, to exercise its corporate powers in the State of Colorado; and according to the alie*612-gations of plaintiff’s petition, was the owner of the property in said petition described in the State of Colorado; and the defendant is a foreign corporation of the State of Pennsylvania doing business as an insurance company in the State of Missouri and also in the State of Colorado;
‘ ‘ That the alleged contract sued upon by plaintiff was made in the State of Colorado, and the insurance against fire by said alleged policy was against loss of property located in the State of Colorado; and said fire by which said property is alleged to have been destroyed took place in the State of Colorado. Hence, the alleged contract sued upon and the alleged cause of action in plaintiff’s petition, if any, is a contract under the laws of Colorado and the cause of action arose in the State of Colorado and is located in the State of Colorado;
“That the defendant corporation is an insurance company of the State of Pennsylvania, and hence is a resident and a citizen of the State of Pennsylvania;
“That the said contract and said cause of action is located in the State of Colorado and is not a contract nor a cause of action in the State of Missouri;
“That under and by virtue of section 7042, Revised Statutes 1909, a foreign insurance company is required upon condition of doing business in the State of Missouri to make the Superintendent of the Insurance Department of the State of Missouri its agent upon whom service of process issuing out of the courts of the State of Missouri might be had; but said Superintendent of Insurance is and can be an agent for the purpose of service of process only for the benefit of the State of Missouri and a cause of action arising in the State of Missouri out of contracts made in the State of Missouri; and said section is solely for the benefit of actions located in the courts of the State of Missouri; and said Superintendent of Insur*613anee is not an agent for the purpose of having process served upon him for a cause of • action arising outside of the State of Missouri and in behalf of nonresidents of the State of Missouri; and the said Frank Blake, the said Superintendent of the Insurance Department of the State of Missouri, upon whom service was had in said action, is not an agent for this defendant upon whom process could be served in the alleged cause of action set forth in plaintiff’s petition.
“Wherefore, this defendant says that this court has not jurisdiction over the subject of this action nor over the person of this defendant.
“2. The bringing of this action in the State of Missouri and outside of the State of Colorado is an attempt on the part of the plaintiff to make use of the courts of the State of Missouri to deprive the defendant of judicial process by which it may procure the attendance of witnesses on its behalf in a defense of the merits of said cause of action; that this defendant is entitled to a defense on the merits of said cause of action and has a defense thereto consisting as follows: First, said policy is void; second, said policy became void by reason of acts of the defendant after the issue of said policy; third, it is-void in fact and in law; fourth, the defendant was not the sole and unconditional owner of said property described in said petition at the time of the issuing of said policy, neither was it the sole and unconditional owner thereof at the time, of the alleged fire; and further the plaintiff has avoided said policy and caused the same to become null and void by its violation of the terms of said policy, and said plaintiff did not have destroyed by fire a portion of the property as alleged in its said petition.
“That said petition presents many issues which the defendant acting on its own behalf will be com*614pelled to defend against, and there is a large amount of testimony in the way of witnesses and in the way of documentary evidence, all located in the State of Colorado, which this defendant cannot produce in any court of the State of Missouri by judicial process, and for that reason this court should not take jurisdiction of said cause and cannot have jurisdiction of said cause; and to be allowed to maintain said action in the State of Missouri would be to deprive the defendant of that due process of law which the Constitution of the State of Missouri guarantees to every foreign insurance company entering the State for the purpose of doing business therein; and to allow said action to be prosecuted in the State of Missouri is to deny to the defendant the equal protection of the laws, and is, therefore, in disobedience of section 1 of article 14 of the Constitution of the United States, which provides that no State shall deprive any person of life, liberty or property without due process of law, nor. deny to any person within its jurisdiction the equal protection of the laws.”
This motion the court nisi overruled, and the de- , fendant answered. In this answer the jurisdiction is thus challenged:
“The defendant herein admits that' at all dates herein the plaintiff was and now is a corporation duly organized and existing under and pursuant to the laws of Arizona, and that at all of said times such defendant was and now is a foreign corporation duly existing under the laws of the State of Pennsylvania, and at all of said times said defendant as such company and corporation has been'and now is engaged in a general fire insurance business in the State of Colorado, and also in the State of Missouri, and was and now is licensed and authorized to do business in both of said States. Defendant says that the policy or contract of insurance issued was made and exe*615cuted in the State of Colorado upon property located in the State of Colorado and further says that therefore said contract of insurance is a contract under the laws of the State of Colorado and not a contract under the laws of the State of Missouri.
“That the said Prank Blake, Superintendent of the Insurance Department of the State of Missouri, upon whom service was had in said cause, was not authorized by the laws of the State of Missouri to acknowledge or receive service of process issued from any court of record in the State of Missouri for this defendant in said cause of action, hence this court has no jurisdiction over this defendant, nor the subject-matter of this action, and section 7042, Revised Statutes 1909, does not apply to this action, for the reason that said contract of insurance is a contract of the State of Colorado and not of the State of Missouri and the cause of action can only be maintained in the State of Colorado, and said section 7042 is unconstitutional and void because it denies to this defendant due process of law and is an effort to take the property of this defendant without due process of law, and is therefore in conflict with section 30 of article 2, of the Constitution of the State of Missouri, which provides that no person shall be deprived of property without due process of law, and is in conflict with section 1, article 14, of the Constitution of the United States, which.provides that no state shall make or enforce any law which shall deprive any person of property without due process of law, nor deny to any person within its jurisdiction the equal protection of the law.
“Defendant further says that said section 7042 was enacted by the General Assembly of the State of Missouri in the year 1885, as shown by Laws 1885, page 183, and that the title to said act is as follows:
*616“ ‘An act to amend section 6013, article 4, of the Revised Statutes of Missouri of 1879, entitled, “General Provisions” relating to insurance and service of legal process therein.’
“Whereas in truth and in fact, said act of the Legislature did not amend said section 6013, hut repealed said section and enacted a new section in lieu thereof, and is therefore in conflict with section 28, article 4, of the Constitution of Missouri, which provides that no bill shall contain more than one subject, which shall be clearly expressed in said title, is contrary to the body of said act, and the subject of the body of the act is not expressed in the title, either clearly or otherwise.
“And defendant further says that said act is contrary to the terms of section 34 of article 4 of the Constitution of Missouri which provides that: ‘No act shall be amended by providing that designated words thereof be stricken out, or that designated words be inserted, or that designated words be stricken out and others inserted in lieu thereof; but the words to be stricken out, or the words to be inserted, or the words to be stricken out and those inserted in lieu thereof, together with the act or section amended, shall be set forth in full as amended.’
“Wherefore, defendant says that said 'Section 7042, Revised Statutes 1909', is unconstitutional and void and that the service herein is void and this court has no jurisdiction over the defendant or over the subject-matter of this action, and to entertain further jurisdiction in this cause would be to deprive the defendant of its property without due process of law.”
Further parts of the answer set out various defenses to the suit upon the policy, which matters can be best stated, if necessary, with the points made. Reply placed in issue matters in the answer.
*617Jurisdiction: Contracts Made Outside of State. I. In this dissent I am not unmindful of the ruling of this court in State ex rel. v. Grimm, 239 Mo. 135, and cases following it. I take it that the United States Supreme Court has fully. sustained the dissent in the Grimm case, and no specious argument can change the force and effect of the very recent holding of that court. . This, however, we discuss later.
It is clear in this case that the defendant did nothing more to give the circuit court of Audrain County jurisdiction over its person than the filing of the two documents we have set out in the statement. One is called a motion to quash the service, and' the other is the answer. It is clear that jurisdiction over the person was challenged from start to finish. Jurisdiction over the person is the proper subject-matter of a plea in the answer. Section 1804, Eevised Statutes 1909, reads:
“When any of the matters enumerated in section 1800 do not appear upon the face of the petition, the objection may be taken by answer. If no such objection be taken, either by demurrer or answer, the defendant shall be deemed to have waived the same, excepting only the objection to the jurisdiction of the court over the subject-matter of the action, and excepting the objection that the petition does not state facts sufficient to constitute a cause of action.”
Section 1800, Eevised Statutes 1909, referred to in section 1804, supra, reads:
“The defendant may demur to the petition, .when it shall appear upon the, face thereof, either: First, that the court has no jurisdiction of the person of the defendant, or the subject of the action; or, second, that the plaintiff has not legal capacity to sue; or, third, that there is another action pending between the same parties, for the same cause, in this State; *618or fourth, that there is a defect of parties plaintiff or defendant; or, fifth, that several causes of action have been improperly united; or sixth, that the petition does not state facts sufficient to constitute a cause of action; or seventh, that a party plaintiff or defendant is not a necessary party to a complete determination of the action.”
From this it appears that jurisdiction over the person is a subject-matter of demurrer, if it appears from the face of the petition, but if it does not so appear, then it is a subject-matter of answer, and is only waived in the event if is not challenged by one or the other methods. The challenge in this case was not only timely, but continuous. Jurisdiction over the person can only be acquired by service of the person had according to law, or by consent, expressed or implied. Implied consent consists in doing such things as would indicate a willingness for the court to try the case — i. e. as filing answer or doing some similar thing, without questioning the jurisdiction of the court. Implied consent is more frequently denominated waiver of jurisdiction. In the case at bar the defendant has waived nothing as to jurisdiction. Dragged into court by the ears, as it were, it has persistently protested want of jurisdiction. It has lodged the plea where the statutes of this State say it may be lodged, L e., in its answer. The reply of the plaintiff filed herein admits all the facts necessary to show want of jurisdiction, if our views of the law are correct. In other words, the reply admits that plaintiff is an Arizona corporation, and the defendant is a Pennsylvania corporation, and that “the contract of insurance was made and executed in Colorado, upon property in Colorado.” This admission shows that it was not the result of business done in Missouri. The full effect of this omission is not in the petition, and therefore demurrer was not necessarily the pleading for defendant. Under the plea *619to the jurisdiction found in the answer, and the admission found in the reply, the circuit court of Au-drain County should have found for defendant upon the issue of jurisdiction.
Our statute, section 7042, Revised Statutes 1909, requires a foreign insurance company to designate the Superintendent of Insurance as its agent to receive service of process in suits filed against such foreign insurance company in the courts of this State. This designation is a pre-requisite to a license to do business in this State. A close reading of our statute, however, will disclose no legislative intent to make service of process in this manner effective in any case except one arising through contracts made and acts done in this State, whilst the corporation was licensed to transact business therein. In the Grimm case, supra, 239 Mo. l. c. 187, I then took occasion to say:
“Neither do I believe section 7042, Revised Statutes 1909, charges our courts with the duty of hearing a case such as is now pending in the court of the respondent Grimm in the city of St. Louis. That section compels foreign insurance companies doing business in this State to make our State Superintendent of Insurance an agent to accept service of process. I believe that this section only confers jurisdiction upon our courts to hear and determine controversies growing out of insurance contracts made in this State, whilst a foreign insurance company is doing business in this State under a license from the State. It is said in the opinion by my learned brother that there is no limitation in this statute, and hence cases from other jurisdictions where there is a limitation in the statute are not in point. I think the statute, when considered as a whole, has a limitation. I think from its language there can be gathered a clear legislative intent to limit the jurisdiction of courts to actions upon contracts made in this State. *620Note the language: ‘Service of process as aforesaid, issued by any such court, as aforesaid, upon the Superintendent, shall be valid and binding and be deemed personal service upon such company, so long as it shall have any policies or liabilities outstanding in this State.’ This follows the language emphasized by my brother, and to my mind characterizes the kind of litigation to which foreign insurance companies can be called upon to respond in our courts. In other words, it fixes a limitation of the kind of causes over which our courts can assume jurisdiction. The statute specifically refers to policies ‘outstanding in this State.’ It is true that this clause refers to a time when such company has withdrawn from the State or is no longer doing business in the State, but it also refers to contracts made when in the State. The policies above mentioned in the statute are policies issued when the company was in the State. The question then arises, why preserve this method of service after the company has left the State and limit it to cases upon policies outstanding in this State only, if the previous portion of the statute .referred to all kinds of actions, whether upon contract in this State or contracts made out of this State?
“To my mind the substituted method of service provided for in this statute only applies to actions arising upon contracts made in this State, and not to actions upon contracts made out of this State. In other words, the statute limits the class of cases in which this kind of service can be effectively had, and the case pending in respondent’s court is not one of the. class, if the averments in the complex motion are true. How the relator may now avail itself of the situation, with jurisdiction over its person having been decided by the majority, may be a question, but not one for discussion at this time. To do so would be but to suggest to counsel how to try their cases.
*621“For these reasons, somewhat hurriedly drawn, I dissent in this case, as well as in those which follow it upon the questions discussed. Valliant, G. J., concurs in these views.”
The exact question, since the writer expressed the foregoing views, has come up in the U. S. Supreme Court in construing a similar statute in, the State of Louisiana. By section 1 of the Louisiana act a foreign corporation was required to file a written declaration setting- forth the places in the State where it was doing business and the name of its “agents . . . in this State upon whom process may be served.” Section 2 of the act reads:
“Whenever any such corporation shall do any business of any nature whatever in this State without having complied with the requirements of section 1 of this act, it may be sued for any legal cause of action in any parish of the State where it may do business, and service of process in such suit may be made upon the Secretary of State the same and with the same validity as if such corporation had been personally served.”
In Simon v. Southern Ry. Co., 236 U. S. 115, l. c. 130, Mr. Justice Lamar, in discussing these statutes, says:
“Subject to exceptions, not material here, every State has the undoubted right to provide for service of process upon any foreign corporations doing business therein; to require such companies to name agents upon whom service may be made; and also to provide that in case of the company’s failure to appoint such agent, service, in proper cases, may be made upon an officer designated by law. [Mutual Reserve Assn. v. Phelps, 190 U. S. 147; Connecticut Mut. L. Ins. Co. v. Spratley, 172 U. S. 602.] But this power to designate by statute the officer upon whom service in suits against foreign corporations may be made relates to business and transactions within the *622jurisdiction of the State enacting the Imu. Otherwise, claims on contracts, wherever made, and suits for torts, wherever committed, might, by virtue of such compulsory statute,'be drawn to the jurisdiction of any State in which the foreign corporation might at any time be carrying on business. The manifest inconvenience and hardship arising from such extraterritorial extension of jurisdiction by virtue of the power to make such compulsory appointments could not defeat the power if in law it could be rightfully exerted. But these possible inconveniences serve to emphasise the importance of the principle laid down in Old Wayne Mut. Life Assn. v. McDonough, 204 U. S. 22, that the statutory consent of a foreign corporation to be sued does not extend to ca/ases of action arising in other States.
“In that case the Pennsylvania statute, as a condition of their doing business in the State, required foreign corporations to file a written stipulation agreeing, ‘ “that any legal process affecting the company, served on the Insurance Commissioner . . . shall have the same effect as if served personally on the company within this State.” ’ The Old Wayne Life Association having executed and delivered, in Indiana, a policy of insurance on the life of a citizen of Pennsylvania, was sued thereon in Pennsylvania. The declaration averred that the company ‘ has been doing business in the State of Pennsylvania, issuing policies of life insurance to numerous and divers residents of said county and State,’ and service was made on the Commissioner of Insurance. The association made no appearance, and a judgment by default was entered against it. Thereafter suit on the judgment was brought in Indiana. The plaintiff there introduced the record of the Pennsylvania proceedings and claimed that, under the full faith and credit clause of the Constitution, he was entitled to recover thereon in the Indiana court. There was no proof as to the *623company having done any business in the State of Pennsylvania, except the legal presumption arising from the statements in the declaration as to soliciting insurance in that State. This court said:
“ ‘But even if it be assumed that the company was engaged in some business in Pennsylvania at the time the contract in question was made, it cannot be held that the company agreed that service of process upon the Insurance Commissioner of that Commonwealth would alone be sufficient to bring it into court in respect of all business transacted by it, no matter where, with or for the benefit of citizens of Pennsylvania. . . . Conceding, then, that by going into Pennsylvania, without first complying with its statute, the defendant association may be held to have consented to the service upon the insurance. commis^ sioner of process in a suit brought against it there in respect of business transacted by it in that Commonwealth, such assent cannot properly be implied where it affirmatively appears, as it does here, that the business was not transacted in Pennsylvania. . . . As the suit in the Pennsylvania ■ court was upon a contract executed in Indiana; as the personal judgment in that court against the Indiana corporation was only upon notice to the Insurance Commissioner, without any legal notice to the defendant association, and without its having appeared in person or by attorney or by agent in the suit; and as the act of the Pennsylvania court in rendering the judgment must be deemed that of the State within the meaning of the Fourteenth Amendment, wé hold that the judgment in Pennsylvania was not entitled to the faith and credit which, by the Constitution, is required to be given to the . . . judicial proceedings of the several States, and was void as wanting in due process of law.’
“From the principle announced in that case it follows that service under the Louisiana statute *624would not be effective to give the district court of Orleans jurisdiction over defendant as to a came of action arising in the State of Alabama. The service on the Southern Railway, even if in compliance with the requirements of Act 54, was not that hind of process which could give the coy,rt jurisdiction over the person of the defendant for a came of action arising in Alabama.” (The italics are ours).
To my mind this ruling of our highest tribunal will stand the test of reason. There is no doubt that a State can require a foreign corporation to come into the State upon terms. Among those terms may be the designation of an agent to receive service of process in suits brought in the courts of the State, but the reasonable construction of all such statutes is, that they refer to suits arising out of business done in the State, and not elsewhere. The laws of a State are presumably for the benefit of its own citizens, and not for outsiders.
The State when it imposes conditions upon foreign corporations is imposing conditions with reference to the business which the corporations expect to do in the State when they apply for licenses. These conditions are imposed for the purpose of protecting the State and its citizens. So that we maintain that this condition imposed by section 7042, supra, should be read in that light. This State has no special interest in making its courts the rendezvous of all alleged causes of action arising in other States, whose laws and procedure may render difficult the procurement of a judgment in such States. Section 7042 was never passed with the legislative intent to authorize such process to be served in cases arising in other jurisdictions. It should be construed (as we think it clearly reads) to have reference only to causes of action growing out of the contracts made and the acts done within this State. When thus construed, the trial court was without jurisdiction in the ease, and *625it should have so adjudged under the pleadings and admissions made in the pleadings.
Appearance. II. It was said in the Grimm case that the form of the motion to quash the execution was such as to make a general appearance. To this I did not then agree and do not now. In the case at a similar contention is made. The suggestion in the Grimm case is that there are matters which go to the merits. In this case when the motion is read, whilst it is voluminous, it must in fairness he said that all that is said therein goes to the question of want of jurisdiction, and reasons why-jurisdiction should not be assumed. The first paragraph of this motion in a rather lengthy way challenges the jurisdiction. It goes to nothing else. The second paragraph, at most, simply sets up reasons why the court should not assume jurisdiction over the person. Taken as a whole it is but a challenge to the jurisdiction and the appearance was special and not general.
It is further suggested that because the first line . or so of the answer uses the words:
“Now comes the defendant herein and after leave of court had and obtained, for its answer herein, says:”
The record proper shows no application for leave to answer. The whole record proper so far as relates to the matter here involved, reads:
“During the regular September term, 1911, on September 4, 1911, the defendant filed a motion to quash writ and return.
“Further during said September term, 1911, on September 6, 1911, the court overruled defendant’s motion to quash writ and return.
“Further during said September term, 1911, on September 14, 1911, awaiting the action of the Su*626preme Court and its decision, this cause was ordered passed without action by this court.
“In Vacation, on December 16, 1911, this cause was by the court continued, awaiting the action of the Supreme Court.
“During the regular March term, 1912, on March 4, 1912, the defendant filed its answer, and deposited with the clerk of this court the sum of $80.05 as tender of premiums and interest paid by the plaintiff to the defendant on said policy; which answer, omitting •caption and signatures, is as follows:”
It will be noted that after the ruling upon the motion to quash the service every other act was done by the court itself, until this answer was filed. Nothing in this record shows that defendant ever waived the matter of jurisdiction prior to filing its answer. If so, then by the very terms of section 1804, Revised Statutes 1909, the defendant did not waive the question, when it made such a question a part of its answer. It had the right to plead Want of jurisdiction over its person along with other matters of defense. So that under the statutes of the State, sections 1800 and 1804, Revised Statutes 1909, this question of jurisdiction (although it be jurisdiction of the person) is well preserved and. is here for our review.
Under the law there can be no question that by filing an answer which only goes to the merits of the ■case, jurisdiction of the person is waived. It may also be waived by a general appearance for any other purpose in the case, and it is useless to review the cases cited -by counsel. Those cases are not this case. Here, like Houston v. Publishing Co., 249 Mo. 332, we have a ease where the question of jurisdiction over the person has been kept a live issue from start to finish. Under the law the trial court should have found for defendant upon this plea in the answer. Other questions in the record need not be discussed. Nor should our previous ruling in the Grimm, and *627the school of cases here with the Orimm case, be taken as stare decisis and preclude a further review of the question. In my humble judgment the question is of such grave concern that it should never be considered settled until it is settled right. [Mangold v. Bacon, 237 Mo. 496, and cases cited therein.]
The judgment appealed from should be reversed and I so vote.
Bond and Walker, JJ. concur in these views.