ca,se, wi},l remand!¥i tp oourt, with. to disJOissthe :])aniel E. Bel)jamin F. SteveDs,'on,wmch the decree against Henry Day was made·
"
i;
1'"'
DIXON f1., ORDER, OF, RAILWAY ,CONDUCTOBS OF, AMERICA. (O(rcuit, Oourt, E. D. WiBCon8m.
April 18, 18W.)
lI'oJUn&1r!NSUR.lNCB COMJ'ANIBS-AGB1I'TfU'OR SBRVICB OF PROo1l:sS.
aI! assoela,tiol) haviI!g a benefit require lteoretarY 'of each local division to' be'ttlty to the health of every appheant for tnIlU1'lI,IIdlil, to keep acorreet, list of the members of the benefit department, to place tJ,tlilrllOI! ,tq!-, name ,of of tll\t Insurance his division bY,tHmllfer from any other 'diVIsion, and also make It'tbe duty of members to no$I:fy,fb"im :Gf, any Ch,anges of: resldenCe\IUeh, secretary must be co,Dsldered an IDsur, of the 8sfoeistlon, under, Rev. St,. Wis. § 2687, subd. 9, lind section '11177, c1eolaring who shal be cODslderedagents of a foreign Insurance company for the p1U'pIl8e of receiving service of proDess·
.M Action by MarY, Dixon against the Order of Railway Conductors,ofAmarics to upon :an insurance certificate. Heard on motiopto ,vacate the of process and dismiss the action. Overruled. ' OMs. ,,4,, for the,rootion. Wigman & Mnrtin, opposed. JEmmlS., District Judge. This suit was brought ina conrt of the state of ren;lOved into tbis court by the defendant. The plaintiff claims under a certain certificate of insurance, issued in 188.5 upon theli/a piber deceased husband by the "Order of Railway Conductors," then ·anunincorporated !l$sociation, subsequently, and in 1887, inrorlaws of 'the state of' Iowa, and having its generalofporated fices withj1l that stllte. 'l'he SU\DmdnSwas served in November, 1890, .(1) upon W,. Pd;)aniels, the grand secretary of the order, and a resident of the atate"of lown", while temporarily within the state of Wisconsin,.1n attenda.nce,ll.s such officer, upon a suit depending in this court j, (2) upon Charles D. Bnker,a resident of Wisconagainst; of a subordinate division of the order, located within tbat state; TiJ.e de/end/;\nt now moves to vacate such service ofprocrss, and to dis.U1i$s tbe action; upon tbegtound that each such service was bylaw. ',' The St. Wis.§ 1953) require every life in.. surance QarP<)l'8it!QIl no.torgnnized under the laws of· this state, before by written instrument deposited with the comdping missioner of designate an attorney,:resident within the state,upl») Whom process against the company may be served with raIlPflct to of action arising out of any business or transaction wifJlin statute (Rev. St·. Wis. § 2637,. subd. 9) pro--
DIXON 11. ORDEB OF<RAILWAY CONDUeiTORI OF AMERICA.
911
vides;ihat serHca lif 1>l1ocess upon any insurance cOl'poration orgarlized under the laws ofWisconsin may be made by'delivery thereof to th6Jlittorney designated by section '()r to any agent in the state of such corporation, within the definition of section 1977. Tha.t section declares that- ' "Whoever solicits insurance in behalf of corporation. * * * Of trlinsmits an applicatidn for Insurance. ora policy of insurance. other than for himself. to or from any such corporation. or who makes .1ny contract for insurance, or collects any premium 'fOl" inSUl'",\ncll. or in any manner acts or 8,ssists in doing either, orin transacting any business of like natnrefor any insurance corporation. or advertises to do any $\lcb tbing.shall be held,tobe aD agent of Buch corporation to all intents and purposes, unless it can be shOwn that he receives no compensation for such servic,es. lo
It has been ruled that,'with respect to foreign insurance companies and the service of process upon them, and by virtue of Rev. St. Wis. § 2637, subd. 9, any person doing for such company any of the aCts specified in section 1977 is an agent of tbe company, so far at! regl1rds the service of process, altbough he may not receive compensation fbt his services. State v. Northwestl!Jt'n E.&- L. A88'n, 62 Wis. 174, 22 N.W·. Rep. 135; State v. UnitedStaie8 Mut. Ace. Ass'n, 67 Wis. 627, 31 N. W. It. is to compel Rep. 229. The purpose ofthis legiRlation is every foreign insurance' d6mpany doing business within. the state· iQ be subjected. with respect to .'such· business, to the juriSdiction of the courts of the state. Out of abundant caution, and in anticipation oHailure of duty by a foreign insurance cbmpany, doing busines$ 'within the state, to appoint an attorney upon whom service may be made, the law desig': nates as such agent any person who for such company does, or aids or assists in doing, any business of like nature to that of' soliciting or'con-' tracting for insurance, transmittip,g applications for policies,· or collecting premiums. " " ." . The corporation defendatit'is composed of conduCtors ofrail'w'aya throughout the United States, associated in divisionsododges in d,ifferent parts of the several states. It has a grand division, composed of certain designated elective officers, and of representatives from each sub'; ordinate division. The grand division has exclusive jurisdiction over the· subordinate and is invested with executive, legislative, lind judicial powers, and witb the control of the This insurance branch of the corporation is designed to furnish mate.rial aid, from a fund obtained upon tbe assessment plitn, to such disabled members, and to tbe widows and children of such deceased members. as 'have availed themselves of its benefits. It is, in effect, a mutual insurance company. under the control and direction of the grand division, composed of tbose members of the order who may choose to in its benefits,. and insuririgits members against dcil.th and totaldisabUlty from accident and disease. Unquestionably" tbisdefendant bas been engaged in the· business within the state' ,ofWisconsih. It bas some seven divisions within the state. It insures iheln bers oftheorder, residents ofthat state;
912
J'EDERAL REPORTER,
vol. 49.
Applications for mePlbership in the insurance branch are by some means -whether bI the applicant directly, or through the secretary of the local division-forwarded to the grand secretary, who, if the application be .ac<lepted, transmits to the apll.licant in Wisconsin, either, directly or through the secretary of the local division, the proper certificate or policy. the transaction of business in this state, within the meaning of thelaw. Manufacturing Co. v. F,erguaon, 113 U. S. 727,734, 5 Sup. Ct. Rep. ,739. , 'rhE! record does not disclose.' clearly the practice with respect to the agenoy:of the secretaries of subordinate divisions in the transaction of thEdI1surance business of the defendant. The affidavits presented in behMf Cif the defendant are, in this respect, somewhat ambiguous. Mr. Baker, who was served with the process sought to be vllcated, and who of a local c:iivision in Wisconsin. asserts that he has not at as secretary of the division or individually,acted for the deor forwarding applications for membership. or the such applications, or in any manner pertaining to the department of the order. This is n,ot a denial of the reof applicaticms and fees. It i!l merely a statement of law tbat in SQ doing he did nQt a.ct for the defend.. of ant." A plain statement o,f facts with regard ,to his acts would have possibly, thrown upon the subject. Mr. Daniels, the grand secretary, that Mr. Baker has not forwarded any applications for insurance, or the fees therefor, since May, 1890. That may all be true, becau,se, p!>ssibly, since that date there had been no applications to forward. It is:p-ot denied that before that date he had forwarded applications. The {Prtql, of the statement would imply that he had. The application may, perhaps. have some bearing upon the practice. of to ittbe certificate of the secretary of the local division of which he was a member, dated April 18. 1885, under the seal of thecertifying to the, correctness of the. statement in the applicadeclaring that the had" paid to me the prescribed fee of So, also, the notices of assessments in use in 1885, signed by the grand secretary, contained the following: , please /see tbat all members of tbeir divisions who aremembll119,f theassociatioJ;l are notified of their assessments. as many members'chahge their address without noti me, and secretaries may know it when 'l dOinot." . at that date would seem to h,ave been that the collection of insurance premiums was made by. the local secretary. That was, however, .before the incorp0l'lltion of the association. The regulations to incorporation. and ,on the 10th day of July, 1888, t,he fee to be forwarded with the application, but are siwith respect to any duty of the secretary of the local division with respect to forwarding of applications, or the gh'ing of notice of assessments. The regulation adopted June 10. 1890, imposes the duty upon t.he secretary of a local division to forward applications. This regulationdid not, however, go into effect until January 1, 1891, and after
DIXON ". ORDER OF RAILWAY CONDUCTORS OF AMERICA.
913
service of process here. It may be that it merely imposed as a duty a practice obtaining under former regulations. 'l'his suggestion derives suppOrt from the certificate above referred to, and because it would naturally occur that the practice should obtain of a member dealing with the grand secretary, through the agency of the secretary of the local division to which he belonged. Mr. Daniels insists that the defendant has ullver had agents within the state of Wisconsin in the conduct of its insurance business. He denies the agency. He is silent as to the practice. Heniaintains a lef;al conclusion, without assertion of facts. He does not even state his definition of agency. The statute definition is a broad one. Mr. Daniels may use the term in a restricted sense. The provinee ofa witness is to speak to facts. The conclusion of law rests with the court. The affiant Strope declares that Mr. Baker stated to him that he was accustomed to forward applications for insurance. Although the mntter is somewhat obscure, it may, I think, be rightly inferred CrOin the practice before incorporation, and the positive regulation now in force, that the practice always· obtained that the dealings between the members and the company were had through the medium of secretaries of local divisions. This inay properly also be inferred from the faihire·of the defendant to possess the court with the facts. He who 'undertakes to answer should aIiswer fully. Mere statements of conclusions of law are not availing. Silence, when disclosure of facts peculiarly within one's knowledge is required, is sometimes as cocvincingas positive assertion.' Irrespective, however, of the question of practice, I am of opinion that the regulations in force at the time of this service constituted thesecretary of alocal division an agent of the defendant for the purpose of ice of process, within the intendment of the Wisconsin statute. Those regulations required. applications to be accompanied by a certificate of health by the applicant, made before the local secretary of a division, and that certificate must be verified by a secretary, under seal of his division. Applicants, ifaccepted, are duly accredited as members from the date of the certification of the application by the local secretary. The secretary of each diVision was required to keep a correct list of the members of the benefit department in his division. The member was required to notify the local secretary, as well as the secretary of the insurance department, of any change in his address, and the local secretary is required to place upon his insurance roll any member of the insurance department joining his division by transfer from another division. The duties thus imposed upon the local secretaries are manifestly in aid of the defendant in the transaction of its business. The certificate of the local secretary to the application is to assure the defendant, by assertion of an officer of one of its divisions, that the statements of the allplipant are correct .The company selects the person wboshall certify to it the truth, and who therein acts, not. for the applicant, but for the company. So, also, is the regulation with respect to the list of insured members to be kept by the local secretary. Tbe company, by its rules, is required to give to each .member notice of an aSbcssment. v.49F.no.11-58
914
.. >'.1,,'"/
:
FEDERAL REPORTER,
put in dafa-nIt until that notice be aerved upon U:sm-vioe be, by mail, itmut>t be properly addressed. ltis eSc sentiali1thel'efore,to ;the sl,lccessf1.l1oonduct of the businf88.,and to accomplish.lthe:benevolent purpose blthe associatioQ, aecretary ofthe.iilsu'rance department be accurately informed of,theresidence of each member, with a'view to the proper service ofnoticeof:assessments, alld, their collection. .The list, required to be kept by the la.cal secretary coulp:perform no office, except 8S an; .aidto the defendant in its transactions with, its members. In. these respects the local secretary is in no sense the, agent of the assured. The acts required ,are, for the benefit of the assurer, not the assured, and are done by the authority of the company,.notof the member. The jmpositionofsuch duties upon local secretanes constitutes them agents:of the corporation, within the definition of the statute, for the. purpose of setvice of process. . Thil defendant has takellout no license to do business,within this state. n hasapp<>inted no attorney, as required by law, to accept service of process. ;Lt is doing businesswithin the state unlawfully Itsaeks to deprive a citizen of the state, claiming under contract made within the state, of that easy recourse to :the judicial tribunals of the state which was de., signed,to , be secured ,to her by the law. ' The company insists that it may be called to accoun,t.only in the courts of the state of. Iowa .with respectto contracts made with citizens of and within other states. As was said in Railr,ood 00. v. Gallahue, 12 Grat. 658: "It would be a startling proposition if in all such cases citizens of Virginia and otheJ:;\i.sl)PlJld be all remedy in her courts fOJ: <l8uses of action arisingunde,r .and ,acts enterf!d into. or done, her territory, and should be turned over to the courts and laws of a Sister. state to seek redress. " I am not of beneficent of the' state, or of the regulations of the defendant; to adopt grievous Without stopto yalidity of the service upon tbegrand secretary within the state,! am of opinion tbat tfle service upon while the secretary of. the subordinate division of the order within the' state must be sustained. The motion will be overruled. ' ,
a
UNITED,Sl'ATES 11. WARDELL et ·al. (ctteuu Oourt> E. D. New ,York. April 6, 1899.) An indictment under Rev. '1St. U. S. § 5622;161' interfering with a deputy-marshal . at a congressional :elilction while "actingaJ111 performing· tQe duties required 01 , .him, and wbicti .be was. ,then and there au.thorized to perf0rJIl by tbe of the United States," sbould'bequashed for indefiniteness, although stated ln' the very words of the statute, since a:statement of what duties he WIl8A6rforming is of the substance of the offense and material to its description. .,' 9. 84ME. . . A n indictment will be quashed o.nly when it is very groB8l1 balL ; ·i'
1.
OJ'J'uns
4GArBST, ELBOTION
L'"w-INDto'l'IIE1'!T-V
AGUENESS.
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