190 N.E. 395
No. 24474Supreme Court of Ohio.
Decided April 4, 1934.
Insurance — Foreign health and accident companies — Appointment of attorney for service of process — Section 9453 (8), General Code — Superintendent of Insurance not statutory attorney — Instrument appointing Superintendent without official status — Superintendent’s successor, served under purported power, not agent of appointing company — Service of summons.
1. Section 9453 (8), General Code, requires foreign companies doing general health and accident insurance business upon a mutual assessment plan to deposit, as a condition precedent to transacting business in this state, a written instrument appointing an attorney upon whom service of process may be had. But such section does not authorize or specify that such appointee must be the Superintendent of Insurance, as is required by Section 9478, General Code, pertaining to fraternal societies.
2. An instrument, appointing the Superintendent as such attorney under Section 9453 (8), General Code, and filed with the State Insurance Department, confers no statutory mandate upon the Superintendent nor does it have an official status in the department files, of which his successors in office are bound to take notice.
3. A Superintendent’s successor in office, served with process under such purported power of attorney, who has accepted no responsibility under such instrument and who had no knowledge that it was on file in his office when he was served, cannot be held to be the agent of the company executing the power, under the common-law rules of agency.
ERROR to the Court of Appeals of Huron county.
This action was brought by the defendant in error, the Mutual Benefit Health Accident Association, in the Huron county Court of Common Pleas on January 18, 1933, wherein the association sought to enjoin Lynn O. Boyle from enforcing a certain judgment obtained by him against the association. The Court of Common Pleas refused the prayer for an injunction and dismissed the petition. Thereupon the association appealed to the Court of Appeals, which entered a decree
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granting the prayer of the petition and enjoined Boyle from satisfying or attempting to satisfy the judgment obtained by him against the association. The cause is here after allowance of plaintiff in error’s motion to certify.
While its final entry discloses that the cause was heard by the Court of Appeals upon the pleadings and evidence, no bill of exceptions has been filed in this court, and we are therefore relegated to the findings of fact and conclusions of law made by the Court of Appeals. The present suit in injunction was based on the claim that no valid service of summons was made upon the association in the previous action and therefore the Huron county court had no jurisdiction over the defendant.
The history of the case can be briefly stated. On December 1, 1932, Boyle recovered a judgment by default against the association in the sum of $17,600. In that case summons had been issued to the sheriff of Franklin county, Ohio, who in his return certified that he summoned the association “by personally handing to Charles T. Warner, Superintendent of Insurance of the state of Ohio, two (2) true and certified copies of this Writ with all endorsements thereon.” No notice of the commencement or existence of the action was ever given by the superintendent of insurance to the association. Warner was superintendent of insurance when the summons was served, having succeeded one W.H. Tomlinson, who was superintendent in October, 1920. The summons served upon Warner by the sheriff of Franklin county on August 19, 1932, was evidently made because of a certain instrument which had been executed by the president and secretary of the association, and filed with the Ohio insurance department in October, 1920. This instrument, denominated Exhibit 5, purports to be a power of attorney, and contains a statement that, having applied for admission to transact business in Ohio in conformity with its laws, the
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association “does hereby appoint W.H. Tomlinson, Superintendent of Insurance, and his successors in office, its true and lawful Attorney, in and for the State of Ohio, on whom all proceedings of law may be served in any action or special proceedings against said Association in the State of Ohio.” It also contained a recital that said attorney was authorized as agent of the association to receive and accept service of process, that such service should be deemed valid personal service upon the association, and that the appointment was to continue in force until another attorney should be duly and regularly substituted. A second instrument, denominated Exhibit 6, and executed by the association, was also filed on October 25, 1920. That instrument contained a stipulation authorizing “any agent of said Company in the State of Ohio, to acknowledge service of process in said State for and in behalf of said Company,” and that said service of process would be held to be as valid as if served upon the company, etc.
When the Huron county suit was brought and service was made by the sheriff of Franklin county, the association had an agent in Huron county upon whom service could have been, but was not, made. The findings of fact state that when the purported service of August 19, 1932, was made upon the superintendent of insurance, Warner, the latter had no knowledge of the existence of the first-named instrument appointing Tomlinson and his successors as the lawful attorney upon whom service could be made. The defendant in error is a Nebraska corporation authorized to do health and accident insurance business upon the mutual assessment plan, and is not a fraternal benefit society.
Messrs. Young Young, for plaintiff in error.
Mr. W.B. McLeskey and Mr. Albert A. Clark, for defendant in error.
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JONES, J.
The sole question involved under the facts found by the Court of Appeals is whether the filing by defendant in error of Exhibit 5 with the insurance department on October 25, 1920, was sufficient to constitute a valid service upon the association in the original case brought in the Huron county court.
While Section 9478, General Code, pertaining to fraternal benefit societies applying for admission to do business, requires the appointment in writing of the superintendent of insurance and his successors, upon whom legal process should be served, we can find no statute authorizing such appointment to be made and filed by this foreign insurance company, which concededly is not a fraternal society. This association is controlled by Section 9453 (8), General Code, which requires the deposit with the superintendent of insurance of an “appointment in writing of an attorney in this state upon whom service of process may be had.” This sub-section does not require “as a condition precedent to transacting business,” that the superintendent of insurance shall be appointed as the attorney upon whom service shall be had. It connotes the opposite idea, that, the appointment required to be made is of one who occupies a private rather than an official status such as is held by the superintendent of insurance. Had the Legislature in the latter section intended that the superintendent should be the one upon whom legal process should be served it would have so specified, as was done in said Section 9478, General Code. When at the same time this association also filed Exhibit 6 with the insurance department, which exhibit authorized any of its agents in the state to acknowledge service, the insurance department receiving and placing that instrument in its files, manifestly both the insurance company and the department of insurance conceived that Section 9453 (8), General Code, had been fully complied with.
It is clear that, under the provisions of Section
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9453 (8), General Code, the Legislature conferred no statutory mandate upon the superintendent, as such, to receive and accept service on the defendant in error. Such being the case Exhibit 5 had no official status in the department files, of which Tomlinson’s successor was bound to take notice. The trial court seemed to take the view that if it were conceded that Warner, as Tomlinson’s successor, had no statutory authority to accept the responsibility imposed by the alleged power of attorney, yet, “having received the summons, he accepted the authority,” under the common-law rules of agency. While such an argument might have some force as to Tomlinson, it cannot apply to his successor Warner, who accepted no such responsibility, and who had no knowledge that such an instrument had been filed in his office; nor had that fact been communicated to him when he was served with process.
The Court of Appeals found that when Sheriff Paul made his service upon Warner on August 19, 1932, Warner had no such knowledge. Had Warner in fact been served as claimed, there was nothing in his files advising him in his official capacity that a common-law power of attorney was on file in his office. Had Warner in fact notified the insurance association that it had been sued, or had he forwarded to it a copy of the summons, there might be a plausible argument supporting the conclusion advanced by counsel for plaintiff in error. But this was not done, and so far as this record discloses the insurance association had no knowledge of the Huron county suit until after judgment had been taken against it.
The judgment of the Court of Appeals is affirmed.
Judgment affirmed.
WEYGANDT, C.J., ALLEN, MATTHIAS, BEVIS and ZIMMERMAN, JJ., concur.
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