Saunders v. Iowa State Trav. Men's Assn. , 222 Iowa 969 ( 1936 )

I find myself unable to agree with the majority opinion, and therefore respectfully dissent.

I. Was the Iowa State Traveling Men's Association doing business within the state of Missouri? That is the first question that confronts us. Let us look at the record.

According to the testimony of the secretary of the association, they have a total membership of about 70,000, and three per cent of these members live in the state of Missouri, or, in other words, they have more than two thousand policyholders in that state. How is this business secured? By sending letters to certain classes of people — such as attorneys — in which letters they set up the cost of the insurance, a list of the claims they have paid during the preceding month, and an application blank. Then, when they secure a member they send him a letter, inclosing an application blank, in which letter they urge him to secure another member, and, if he secures a member, he is given some kind of a present; it may be a bill-fold, a pen, pencil, or knife. His compensation for securing the member is some article which they list. Thru this procedure they have built up this large list of policyholders in the state of Missouri. They collect premiums from the membership, sending them notice of the amount of the premium due. When they have a claim they send a letter to some doctor and ask him to examine the claimant and make a report upon a special form that the association has. Yet, it is the claim of the association, in the face of such a record, and it is the holding of the majority, that this association is not doing business in the state of Missouri.

The Supreme Court of the United States had this question before it in the case of Commercial Mutual Accident Company v. Davis,213 U.S. 245, on page 255, 29 S. Ct. 445, 448, 53 L. Ed. 782, and that court said:

"Was the defendant doing business in the State of Missouri? The record discloses, and the court has found, that it had other insurance policies outstanding in the State of Missouri. Upon these policies undoubtedly premiums were paid, and it was the right of the company to investigate losses thereunder, to have an examination of the body of the deceased in proper cases, and to do whatever might be necessary to an adjustment or payment of any loss. The record shows that the company sent Dr. Mason to Fayette to investigate the loss sued for in this case, and later, and at the time of the service of the process, Mason was in Missouri with full authority to settle the loss in controversy.

"Previous cases in this court have not defined the extent of the business necessary to the presence of a foreign corporation in the state for the purpose of a valid service; it is sufficient if it is doing business therein. We are of the opinion that the finding of the court in this case is supported by testimony, and that the corporation was doing business in Missouri."

The Nebraska court had this question before it in the case of Tomson v. Iowa State Traveling Men's Association, reported in88 Neb. 399, 129 N.W. 529. At page 530 that court said:

"The second contention of defendant that the company was not doing business in Nebraska is equally untenable. Among the exhibits introduced in evidence upon the hearing of the objection to jurisdiction were the twenty-third and twenty-fourth annual reports of defendant company. The former shows that during the year from December 6, 1902, to December 5, 1903, the defendant paid accident claims to 50 Nebraska certificate holders, and the latter shows that for the next year it paid accident claims to an additional 50 residents of Nebraska. If the company were doing so fortunate a business that the assessments upon each member amounted to only $9 per year, as stated in their numerous circulars introduced in evidence, and they paid 100 accident claims in two years, it is quite apparent that it must have a large membership in this state; for it is a matter of common knowledge that only a small percentage of persons carrying accident insurance are ever so unfortunate as to be called upon to present claims against the companies in which they are insured. In the light of this record we think it is a juggling of terms to claim that the company is not doing business in Nebraska, simply because, in violation of our statutes, it has never complied with the law by regularly appointing agents to represent it in this state. In Deere Plow Co. v. Wyland, 69 Kan. 255, 76 P. 863 [2 Ann. Cas. 304], the first paragraph of the syllabus reads:

"`A single transaction by a foreign corporation may constitute a doing of business in this state within the meaning of section 1283, Gen. St. 1901, making certain requirements of foreign corporations doing business in the state, where such transaction is a part of the ordinary business of the corporation, and indicates a purpose to carry on a substantial part of its dealings here.' See, also, Pennsylvania L.M.F. Ins. Co. v. Meyer,197 U.S. 407, 25 S. Ct. 483, 49 L. Ed. 810."

In the majority opinion is cited the case of Minnesota Commercial Men's Association v. Benn, reported in 261 U.S. 140, 43 S. Ct. 293, 67 L. Ed. 573. It seems to me, however, the record in this case is different than in the case cited. In the case at bar they had over two thousand policyholders in the state of Missouri. They sent application blanks to their members, urging them to secure other members, and if they did so, paid them for that work by forwarding to them a bill-fold, a knife or pen. It adjusted losses in the state of Missouri. It hired doctors to examine the claimants. It paid a large number of losses. In the case at bar we have the sworn evidence of witnesses who had claims against this association, and settlement of those claims, under the testimony, was made thru Dr. Robinson, the physician designated by the association. True, he is a doctor, but he can also be a claim adjuster. His knowledge of the medical profession does not interfere with his ability to settle claims. In the Benn case there was no such evidence.

It would seem to me, in the words of the Nebraska court, to be a "juggling of terms" to claim that the association is not doing business in Missouri simply because, in the violation of the statutes of that state, it has never complied with the laws of that state.

II. The next question that confronts us is whether or not the person upon whom service was made, was a proper party, within the contemplation of the statutes of the state of Missouri. The legislature of that state properly saw fit to protect the citizens of Missouri by passing section 5897 of the Revised Statutes of 1929 (Mo. St. Ann., sec. 5897, p. 1683), which is set out in full in the majority's opinion. Certainly, no one would argue but that it was unreasonable to expect these citizens of Missouri to be forced to come to Iowa to litigate claims that they had against this association, and to prevent this hardship upon its citizens the statute above referred to was passed. Service in the case at bar was made upon Dr. Robinson. It is true, he is a physician, but, in addition to this, he assisted in the adjustment of claims in that state. There is sworn evidence of witnesses who were policyholders in the association, that they received a letter from the association, directing them to go to the office of Dr. Robinson and that he would there examine their injury; that, in addition to the examination they discussed with him the question of settlement. One of these witnesses testified that the doctor asked him if he would take $100 as a settlement and told him that "he would recommend it and anything he recommended the company approved." This witness received the $100 in settlement of his claim. The doctor made out reports which contained the name and address, and occupation, of the claimant, at the time of the accident, the manner in which the accident happened, condition of the claimant, and finally, the confidential remarks in regard to the claim. In addition to this, we have the testimony of the secretary of the association as follows:

"In the event of a claim being filed against our company, or presented to our company by any member of the association, we did not send investigators from Iowa to the place where the person lived. We rely upon the report of our local examiner and physician; that is true as to our dealings in the State of Missouri and around Kansas City."

Dr. Robinson examined a large number of claimants each month and had been doing so for a period of years for this association.

In view of this record it seems to me that Dr. Robinson came within section 5897 of the Revised Statutes of Missouri, which provides that service may be made on any person who adjusts or settles a loss or pays the same for such insurance corporation, or in any manner aids or assists in doing either. If he didn't have authority to settle and adjust losses, no one can say, in the face of this record, that he did not aid and assist in the settling and adjusting of losses. And, as he was engaged in that business for this association, service upon him was a proper service and the Missouri court had jurisdiction to enter the judgment.

The majority say:

"There are authorities with which this opinion does not accord, but our conclusion follows previous pronouncements of this court, and other authorities that appeal to us as well reasoned and sound."

I cannot agree that there are pronouncements of our court that sustain the contention of the majority, but, if there are, I would overrule these pronouncements, for it seems to me the better weight of authority holds the contrary view to that expressed in the majority's opinion. I would reverse the case.

ANDERSON and HAMILTON, JJ., authorize me to state that they join in this dissent.