Haynes v. United Ins. Co. , 48 Ohio App. 475 ( 1934 )

This is a proceeding in error from the Municipal Court of Cincinnati, to reverse a judgment of that court vacating a former default judgment of such court in favor of the plaintiff therein.

The plaintiff in error, Lovie Haynes, filed the original action in the Municipal Court of Cincinnati to recover $310 upon a policy of life insurance in which she was the beneficiary. On November 21, 1932, plaintiff in error filed a precipe for alias summons in the following terms:

"To the Clerk:

"Please issue alias summons on defendant company by serving its agent, John Herbert, 1030 Wade St., or Henry G. Herold, 4545 Clearview Ave., its agent, in the above entitled case.

"Rubenstein Falk, "Attorneys for Plaintiff."

Summons was made by serving the agent Henry G. Herold.

No answer being filed, a default judgment was taken on December 10, 1932, by plaintiff in error. In the next term of the Municipal Court of Cincinnati, on March 11, 1933, the defendant in error filed a petition to vacate such judgment, in which it alleged that the defendant in error was not doing business in Ohio in November, 1932, or thereafter; that it was never properly served; that the person upon whom service was made was not the agent of defendant in error, or in its employ, and had never been designated as an agent for service of summons; that it had no notice of the action against it; that it has a good defense to the claim of plaintiff in error, in that the policy upon which the action was predicated was never issued by the company, and that the judgment was secured through perjured testimony.

The answer to the petition to vacate was a general denial.

The evidence presented in the proceeding to vacate discloses that the defendant in error, a foreign life insurance company, on September 4, 1929, pursuant to the requirements of Section 9369, General Code, executed the following instrument and filed the same with the Ohio Insurance Department:

"Know All Men by These Presents:

"That the United Insurance Company, organized under the laws of, and within the State of Illinois, and which had its principal office at Chicago, in the State of Illinois, does hereby authorize any agent of such Company in the State of Ohio to acknowledge service of process for and in behalf of such Company in the State of Ohio, and consents that the service of process, mesne or final, upon any such agent, shall be taken and held to be as valid as if served upon the said Company, according to the laws of the State of Ohio, or of any other state or government, and waives all claim or right of error, by reason of such acknowledgment of service, and consents that if suit be brought against it after it ceases to do business in the State of Ohio as aforesaid, and it has no Agent in the County in which suit is brought, upon whom service of process can be had, as provided in Section 9381 of the General Code of Ohio, service upon said Company shall be had by the Sheriff mailing a copy of the summons or other process, postage prepaid, addressed to it at 2721 South Michigan Avenue, Chicago, in the State of Illinois, at least thirty days prior to the date of taking judgment in said suit, which shall be as valid as if served personally upon the said United Insurance Company, according to the laws of the State of Ohio, or of any other state or country.

"Witness our hands and seal of the Company, this 4th day of September, 1929.

"A.D. Johnson, O.T. HOGAN, "Secretary. President."

Section 9369, General Code, provides as follows:

"Any such company, desiring to transact such business in this state by an agent, shall file with the superintendent of insurance a written instrument, duly signed and sealed, authorizing any agent of the company in this state to acknowledge service of process for and in behalf of the company in this state, and consenting that the service of process, mesne or final, upon any such agent, shall be taken and held to be as valid as if served upon the company according to the laws of this or any other state or government, and waiving all claims or right of error by reason of such acknowledgment of service, and that if it be sued after it ceases to do business in this state, and it has no agent in the county in which suit is brought upon whom service of process can be had, as provided in section ninety-three hundred and eighty, service upon it shall be had by the sheriff mailing a copy of the summons or other process, postage prepaid, addressed to it at the place of its principal office located in the state where it was organized, or if it is a foreign insurance company, to it at the place of its principal office in the United States, at least thirty days prior to the date of taking judgment in the suit. The sheriff's return shall show the time and manner of such service."

It appears, further, that while the attorney for the defendant in error took the stand and testified that the defendant in error had ceased doing business in Ohio at the time of service of summons in this original action, the defendant in error had as far as the record shows failed completely to comply with the provisions of Section 655, General Code, in which is set forth the manner in which a foreign life insurance company may cease to do business in this state.

Section 655, General Code, is as follows:

"When a life insurance company doing business in this state decides to discontinue its business, the superintendent of insurance upon application of such company or association shall give notice, at its expense, of such intention at least once a week for six weeks in a paper published and of general circulation in the county in which such company or its general agency is located. After such publication the superintendent shall deliver to such company or association its securities held by him, if he is satisfied on an exhibition of its books and papers, and on an examination made by himself or by some competent disinterested person or persons appointed by him, and upon the oath of the president, or principal officer, and the secretary or actuary of such company, that all debts and liabilities due or to become due upon any contract or agreement made with any citizen or resident of the United States are paid and extinguished; but the superintendent from time to time may deliver to such company or association or its assigns any portion of such securities on being satisfied that an equal proportion of the debts and liabilities due or to become due upon any such contract or agreements have been satisfied, if the amount of securities retained by him is not less than twice the amount of the remaining liabilities."

It further appears that Henry G. Herold at the time service was made upon him was the duly licensed agent under the laws of Ohio, and designated as such in the license issued at the request of defendant in error and filed with the county recorder of Hamilton county. This license was valid until April 1, 1933, was in force at the time of service, and there was no request made by the defendant in error to cancel the same.

The certificate is as follows:

"(To be filed with County Recorder.) "Certified Copy State of Ohio "Agent's License Division of Insurance.

"Foreign Life Company.

"To the United Insurance Company, of Chicago, State of Illinois, having complied with the requirements of the law, and having been authorized by the Superintendent of Insurance of Ohio to transact the business of insurance in this State for a term ending on April 1, next, as specified in its License and in its Certificate of Compliance on file with the Recorder of Hamilton County, Ohio; now, the undersigned, The Superintendent of Insurance of Ohio, being satisfied that Henry G. Herold is worthy of a license in such behalf, hereby licenses such Henry G. Herold of Cincinnati, County of Hamilton, State of Ohio, as an agent of said company.

"April 1, 1932. "This license unless sooner revoked will be in force until midnight, April 1, next after its date.

"In Testimony Whereof, Witness my hand and seal at the Division of Insurance, State House, Columbus.

(Seal) "Charles T. Warner.

"The Superintendent of Insurance of Ohio.

"I hereby certify under said date and seal, this to be a true copy of the original license bearing even date herewith.

"Superintendent of Insurance of Ohio."

This certificate was issued pursuant to the provisions of Section 9377, General Code, which then read as follows:

"No person, company, or corporation, directly or indirectly, shall act as agent for any such company, partnership, or association, either in procuring applications for insurance, taking risks, or in any manner aiding in the transaction of the business of life insurance in this state, until it procures from the superintendent a certificate of authority, which shall be renewable annually, stating that the requirements of this chapter as to such company, partnership or association have been complied with, and setting forth the name of the attorney for such company, partnership or association, a certified copy of which certificate must be filed in the recorder's office of the county where the agency is to be established, and which shall be the authority of such company, partnership, or association, and its agent, to do business in this state."

Section 9379, General Code, provides that:

"All licenses granted by the superintendent of insurance in pursuance of this chapter shall continue in force, unless suspended or revoked, until the first day of April next after the date of their issue."

Sections 9380, 9381 and 9382, General Code, provide for the procedure as to designation of agents for service when a foreign insurance company ceases to do business. Even under these statutes, the service in the instant case would have been proper. However, it does not appear, as we have hereinbefore stated, that the company had, within the provisions of the law, ceased doing business. We construe the term ceasing to do business to mean — according to law and the provisions of the statutes applicable — not simply the abandoning of an office, or the discharge of agents without any withdrawal of their authority through the Ohio Insurance Department. There was no irregularity, which under the provisions of Section 11631, General Code, would justify a suspension of the judgment.

As to the claim that the judgment was secured by perjured testimony, this ground for vacation is not available until after conviction of the witness against whom the charge of perjury is made. Mason v. Tremayne, 115 Ohio St. 398, 154 N.E. 732.

If fraud is relied upon it must be predicated upon acts outside of, collateral and extrinsic to, the matter actually tried by the first court, and not related to the matter concerning which the judgment or decree was rendered. Michael v. American NationalBank, 84 Ohio St. 370, 95 N.E. 905, 38 L.R.A. (N.S.), 220;Minetti v. Einhorn, 36 Ohio App. 310, 173 N.E. 243. No such extrinsic acts constituting fraud appear in the record.

The trial court erred in the application of the statutes noted, and in finding that the defendant in error had ceased to do business. There was no evidence of this. The judgment of vacation will, therefore, be reversed, and, there being no evidence sustaining the claim of irregularity, judgment is here rendered for the plaintiff in error; the effect of such final determination being to reinstate the original judgment in her favor, the ultimate extent of the power of the trial court being only to suspend the original judgment. 23 Ohio Jurisprudence, 1256, 1257, Section 1186.

Judgment reversed and judgment for plaintiff in error.

HAMILTON, P.J., and CUSHING, J., concur.