Dansby v. North Carolina Mutual Life Insurance

189 S.E. 122, 211 N.C. 120, 1937 N.C. LEXIS 17

Opinion

Per Curiam.

This case was before this Court at the Fall Term, 1935, on appeal by defendant from judgment overruling defendant’s demurrer, .and is reported in 209 N. C., 127, where the material facts are stated.

During the trial in the court below objections to evidence offered by defendant to show that the facts recited in the Mississippi judgment were insufficient to constitute service of summons in that state, were properly sustained.

The fact that the defendant, though doing business in the State of Mississippi for a number of years, had not, in fact, as required by the statute as a condition precedent to doing business there, formally constituted the insurance commissioner of that state its agent for service, •could not avail the defendant as a defense against liability incurred while so engaged. It would be conclusively presumed, in favor of one seeking redress for the breach of an insurance contract in that state, that it was doing business there in compliance with the statute, and it should not be allowed now to show its own violation of law as a defense to an action brought by a policyholder. Sparks v. National Masonic Acc. Assn., 100 Iowa, 458; North American Union v. Oliphant, 141 Ark., 346; Flinn v. Western Mutual Life Association, 187 Iowa, 507; Old Wayne Mut. Life Assn. v. McDonough, 204 U. S., 8.

The Mississippi judgment recited: “The defendant was duly and legally served with process in the manner and form required by section 497 of the Mississippi Code of 1930, by serving a true copy thereof on •Geo. D. Riley, Insurance Commissioner of the State of Mississippi.”

There was no evidence to controvert these facts.

Giving due faith and credit to the judicial proceedings of the State of Mississippi (Milwaukee County v. White Company, 296 U. S., 268), we find in the trial below

FTo error.