REPORTER.
MOHR
&
Mom DISTILLING CO.
v.
INSURANCE Cos. *
(Oircui' Court, 8. D. Ohio, W. D. June, 1882. ) 1. ACTIONS UPON INSURANCE POLICIES TRANSITORY, NOT LoCAL.
An action upon a policy of insurance is transitory, notIocal, and may, therefore, be brought wherever the company issuing the. policy can be found, without regard to where the contract of insurance was made, or the sUbject thereof was located. 2 ACTIONS AGAINST FOREIGN CORPORATIONS IN UNITED STATES COURTS-SERVICE OIl' PROCESS UPON AGENTS.
Where foreign corporations establish agencies in a state whose laws providft that they may be summoned by process served upon such agents, they are "found II within the district in which such agent is uoingbusiness, in the meaning of the act of congress of March 3, 1875, (18 St. at Large, 470,) and may be serVed in the same manner in suits brought in the courts of the United States. 3. FOREIGN INSURANCE CoMPANIES IN OHIO-CONSENT TO {JE SUED.
Semble, that the consent to be through certain agencies, required before foreign insurance companies are allowed to transact business in Ohio, is not limited simply to causes of action arising within the state, but extends to all transitory actions.
Moulton, Johnson ct Levy and W. H. Jones, for plaintiff. Follett, Hyman ct Dawson and Gary, Cody ct· Gary, for defendant. MATTHEWS, Justice, (orally.) In each of these cases the plaintiff is a citizen of Indiana, and the defendants are corporations in states other than Ohio, but each of which is licensed under the laws of Ohio to transact insurance business within this state, having agents appointed for that purpose, and actually transacting business in this state. The causes of action are upon policies of fire insurance issued by these companies, the subject of the insurance being property in the state of Indiana. The defendants have been sued here, and process has been served upon their agents. Motions were made heretofore to set aside that service, on the ground that this court did not have jurisdiction of the several causes of action, or over the persons of these defendants. The court, of course, has jurisdiction of the subject-matter in case the parties are right. The controversies are between citizens of different states, so that, in that respect, the court has jurisdiction, and the question then is reduced to one of jurisdiction over the persons. It is conceded that these actions might be maintained in the state courts of Ohio, notwithstanding the policies may not have been issued by the agencies in this state, and although the subject of the insurance is not in this state. · Reported by J. C. Harper, Esq., of the Uincinnati bar.
MOHa & MOHB DISTILLING CO. V. INSUBANCB COS.
'75
Mr. Hyman·. That is not conceded, your honor. Matthews, J. I assume it, then; because I think it is clear that
these actions might be brought in the state courts, notwithstanding the fact that the policies of insurance may have been issued by the companies through agencies not in this state, and although the subject of the insurance is not in this state. The action of aS8umpsit or covenant (as have been brought in these cases) upon a policy of insurance is not local but transitory, and may be brought wherever the defendant is found; and, under the general provision of the Code of Procedure in this state, I assume it to be indisputable that an action might be maintained. It might be maintained in either of two forms; that is, in either of two modes of procedure. If there had been found property of the company, the process might have been by a foreign attachment, and if so, personal service need not have been had, and the judgment would have only gone to the extent of the property found, which might be subjected to the payment of it. Or if the corporation had a managing agent, (as described in the Code of Procedure of this state,) upon whom service could be made, it might have been brought in personally and made to answer to a personal judgment, and that judgment would have been conclusive between these parties in any other forum. Now, of course, an action cannot be commenced in this court against a defendant by attachment. It must be by a personal service, because the act of congress provides that the action shall be brought in the district where the defendant is an inhabitant, or in which he may be found, and the question is whether, under the circumstances of this case, these defendants have been found in this district. . The statutes of Ohio have provided, as I ha.ve already indicated, the mode by which foreign corporations transacting business in this state, and represented by agents in this state, may be.summoned to answer any cause of action transitory in its nature. The insurance law itself requires that they should expressly assent to its terms and consent to be sued through certain agencies before they are allowed to transact business in this state. The defence is that that consent only goes to the extent of the terms of that statute, and is reasonably construed to cover only the transactions arising ·under it. But, even if that were so, I should still think that under the other general provisions of the statute making provision for service of process upon managing agents of foreign corporations, their into the state by means of such agents for the purpose of transacting business was necessarily an assent to
476
FEDERAL REPORTER.
being sued in that way, and constituted them personally within the district, in such a sense as that they may be said to be found by pro. cess when issued against them and served on these agents. I think this is a necessary result of the application of the doctrine contained in the case of Railroad Co. v. Harris, decided by the supreme court, in 12 WalL 65, and I do not see that it is possible to distinguish these cases from the case of Ex parte Schollenberger, 96 U. S. 869; although in that case the cause of action was one which arose under the operation of a law which authorized the companies to transact business in the state of Pennsylvania. The only distinction, then, between the twd cases is that here the causes of action were not created by the action of the agents of the corporations in this state. But, byvirtue of the general provisions of the statute relating to service on foreign corporations, even on the supposition that I am not authorized to construe the in'surance law itself as requiring them to assent to be sued with reference to all causes of action,-and I do not think it can be limited,-I have thought this service was rightly had. The motions are granted vacat· ing the former orders setting aside the service in these cases, and the cases are reinstated. NOTE. The act of March 3, 1875, (1 Rev. St. Supp. p. 470, c. 137, S 1,) adopts the phraseology of the constitution, and enlarges the jurisdiction of the·circuit court to the full extent of the powers of congress over the subject, and repeals the previous limitation requiring one of the parties to be a citIzen of th.e state where the suit is brought. Eureka Mining .Co. v. Richmond Mining Co. 2 FED. REP. 829; Dillon, Removals, (3d Ed.) pp. 26,27: Peterson v. Chapman, 18 Blatchf. 395; Brooks v. Bailey, 9 FED. REP. 438: Cooke v. Ford, 16 Am. L. Reg. 417; Taylor v. Rocl.efeller, 18 Am. L. Reg. 306, and note, p. 310; Sheldon, v. Keokuk Packet Go. 1 FED. REP. 792; Osgood v. Chica,fjo, etc., R. Co. 7 Chi, Leg. N. 241; Mayo v. Taylor, 8 Chi. Leg. N. 11; v. Missouri Valley L. Ins. Co. Id. 150; Se<ikler v. Backhaus, 9 Chi. Leg. N. 161. Section 739, Rev. St., provides that defendant can be sued only in the district where he resides or may befound. But corporations may be found for service of process wherever they are doing lJusiness. Wilson Packing Co. v. Hnntel', 8 Cent. I-,aw J. 333; Railroad Go. v. Harris, 12 Wall. 65: Ex paru Schollenberger, 96 U. S. 369; Moulin v. Ins. Co. 1 Dutch. 57; 11£och v. Ins. Co. 10 FED. REP. 690; Wheeling, etc., Tmwp. Co. v. B. & O. R. Go. 1 Cin. Sup. Ct. Rep. 311; Hannibal, etc.. R. Go. v. Crane, 102 Ill. 249; Handy v. .lEtn(l Ins. Co. 37 Ohio St.-, (2 Ohio Law J. 289;) McNirhol v. U. S .·l:Ierrantile Ass'n, 14 Cent. Law J. 51 j v. Empire Tmnsp. Co. 14 O. G. 523. The questions are believed to be of sufficient importance to warrant inserting here the able opinion of Judge Manning F. Force rendered in Mohr & Mohr IJistilling Co. v, Lamar Ins. Co., pending in the superior court of Cin-
HOHB & MOHR DISTILLING CO.L.INSURANCE 008.
477
cinnati, being one of the same series of cases as that decided by :Mr. Justice Matthews. It arose upon a motion to set aside service of summons, and is as follows: "FORCE, J. The case presents a question of jurisdiction. .Both are foreign corporations. This court has, by statute, jurisdiction over an action against a foreign corporation when such corporation can be found within the city. A corporation can be found where it can be served with a summons according to law. A foreign corporation can be served with summons according to law by service upon a managing agent. The service in this case was upon 'John P. Whiteman, agent of said Lamar Insurance Company, and the chief officer of its agency in the city of Cincinnati. No chief officer of said company found.' Such service is service upon a managing agent. Am. Ex. Co. v. Johnston, 17 Ohio St. 641. This court, therefore, has jurisdiction of the action, and the service of summons is according to law. " It is true that there are special modes of service upon insurance companies provided by statute, but it has been expressly decided that such special modes are not exclusive, but cumulative. Handy v. ZEtna Ins. Co. 37 Ohio St.-, (Ohio Law J. January 5, 1882.) .,It is urged that the courts of the state or at least should not, hear causes between non-residents; that there is enough litigation to which citi. zens of the state are parties to fill all the sessions of court. But the courts cannot refuse to hear causes that have a right to be heard, and it is impossible to contend that non-residents have not a right to sue non-residents in tiie conrts of the state. The law makes no distinction between natural and artiticialpersons as to their right to sue or their liability to be sued. By the comity of all the states, foreign corporations can sue in their courts. Bank of A.ugusta v. Earle, 13 Pet. 519. "It has not questioned that a corporation can do business in states other than that in which it is chartered. By repeated decisions of the supreme court of the United states it is settled that a corporation can do business in such other state only by permission of such other state, and upon the conditions as such state may prescribe. Where a state by general law provides for a mode of service upon foreign corporations doing business within the state, such law is a condition upon which a foreign corporation can do business within the state: Paul v. Virginia, 8 Wall. 168: and, by doing business in this state, a foreign corporation assents to such condition. Lafayette Ins. Co. v. French, 18 How. 404. "The courts of Ohio are open for any non-resident, whether a natural or an artificial person, to sue any other non-resident, whether a natural or an artificial person, upon complying with the reqUIrements of the statute. 'Non-residents of the state and foreign corporations are as much subjept to its jurisdiction as are residents and domestic corporations. Except in actions of a local nature our courts are open to all who may seek relief therein against any olle who may be reached by its process.' Handy v. ZEtna Ins. Co. snp1'a. "If it is suggested that the national courts are the proper forum in actions between non"resident corporations, it is held otherwise. In the reports of the United States, corporations are always termed citi::ens supreme court of
478
of the state by which they are chartered. As such they are held included in the word ·citizens' in the constitution of the United States and in the removal acts. The act of 1875 for removal of causes from state to national courts expressly recognizes the jurisdiction of state courts over actions between non-resident citizens. The same express recognition is made by the supreme court of the United States. Bal'ney v. Latham, 103 U. S. 205. "Motion overruled." Provisions of Ohio statutes as to oonsent of foreign insurance oompanies to be sued and service made upon certain agents, (seotion 3657, Rev. St. 1880,) and
where actions against foreign corporations generally to be brought, and how service of process made. (sections 5030,5045,5046, Rev. St. 1880.)-[Rm>·..
KING
HAMILTON.
(Circuit Court, D. Oregon. June 21, 1882,1 1.· PROMISSORY NOTE.
A note for 500 pounds sterling is payable in a certain sum of "mouey" and made upon a sufficient consideration. therefore negotiable, POUND STERLING,
By section 2 of the act of March 3, 1873, (11 St. 603; section 3565, Rev. St.,) it is provided that "in the construction of contracts payable in sovereigns or pounds sterling" each pound shall be valued at *4.8665. Held, that in an action upon a note payable in pounds sterling it is not necessary to aver or prove the value of such pound in money of. the United States, but that the court will give judgment for the value of the contents of the note in money of the pnited States, according to the ratio prescribed by the statute.
Action upon Note. EUu G. Hughes, for plaintiff. William H. Effinger, for defendants. DEADY, D. J. This, action is brought by the plaintiff. a. British subject, against the defendant, a citizen of Oregon. upon a promiSe sory note alleged to have been made by the defendant on January 29, 1879, and delivered to "Mrs." John Pollock, "for the sum of 500 pounds sterling, money of the united kingdom of Great Britain and Ireland," payable in oqe year after date, with interest at the rate of 5 per centum per annum; which note was afterwards duly transferred to the plaintiff, and is still unpaid. The oomplaint concludes with a prayer for judgment against the defendant for said sum of £500 and interest, or "its equivalent in money of the United States." Nothing is alleged as to where the note was made or made payable.