State ex rel. Continental Insurance v. Doyle

40 Wis. 220
CourtWisconsin Supreme Court
DecidedAugust 15, 1876
StatusPublished
Cited by6 cases

This text of 40 Wis. 220 (State ex rel. Continental Insurance v. Doyle) is published on Counsel Stack Legal Research, covering Wisconsin Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State ex rel. Continental Insurance v. Doyle, 40 Wis. 220 (Wis. 1876).

Opinion

Ryan, C. J.

In granting a peremptory mandamus to the secretary of state to revoke the license of the relator in this case (State ex rel. Drake v. Doyle, ante, 175), we spoke with just severity of the utter mala fides of a foreign insurance company coming here under a voluntary and advantageous license of the state, upon condition not to harass citizens of the state dealing with it, by removing actions on its policies from the state court of the vicinage to distant and expensive federal courts. The papers submitted to us in support of the present application go far to satisfy us that the removal of the action by the present relator, for which we granted the writ to revoke its license, was without the knowledge or sanction of its principal officers in New York. The affidavit of Mr. Lamport, vice-president of the company, appears to be very frank and manly, and to exonerate the New York officers of the company from all personal responsibility for the removal, or for the scandalous breach of faith involved in it. We cannot but regard the petition of the relator, repudiating the removal, as a bona fide submission to the authority of the state, and to the condition imposed upon the relator’s license to do business in it.

The supremacy of the state law over state officers, and over foreign corporations licensed under it, has been sufficiently vindicated, and foreign corporations sufficiently warned of the danger of playing fast and loose with their faith to the state. And we heard the present application with a strong desire of relieving the relator from further loss by the revocation of its license. We regret that we are able to see no way of doing so, consistent with our duty.

I. This application was put upon the ground that the re[231]*231moval of tbe action from tbe state to tbe federal court, was caused by tbe attorney of tbf? insurance company, appointed under sec. 22 of cb. 56 of 1870, without tbe knowledge and against tbe wishes of all tbe chief officers of tbe company in New York; that bis action in tbe premises was outside of bis authority, and did not bind tbe corporation. To this position there are two sufficient answers:

First. Tbe petition to remove tile cause was tbe petition of tbe corporation, running in its name,- and presented to tbe state court on its behalf, by tbe attorneys appearing for it of record. Tbe court in which it was presented could not disregard it for any latent want of authority of tbe officer verifying it. It was effectual to remove tbe cause, and tbe cause was in fact removed under it. Sec. 1, cb. 64 of 1872, makes it the imperative duty of tbe secretary of state to revoke tbe license of a foreign insurance company which shall make such application to remove an action. And tbe duty of tbe secretary to do so rests, not upon tbe authority or abuse of authority of tbe officer of tbe corporation causing tbe application to be made, but upon tbe actual application to remove tbe action.

And this was not only wise, but necessary. Eor an agent or officer of tbe corporation, not expressly authorized to do so, might well, as this ease proves, make an effectual application to remove tbe cause, and remove it beyond recall, while tbe corporation might repudiate bis act and claim its insufficiency to justify tbe revocation of its license. Tbe actual removal is tbe evil at wlricb tbe statute aims. And.no foreign insurance company could be tolerated in suffering tbe removal of a cause defacto by its officer or agent, and in then claiming immunity de jwre from revocation of its license, for tbe officer’s or agent’s want of authority. Tbe authority which is adequate. for tbe removal of a cause, is adequate to work a revocation of tbe license.

Tbe local agents and attorneys of foreign insurance companies licensed bere, bave tbe actual power to remove causes [232]*232from state to federal courts. And it is not enough for the corporation to be silent, not to instruct their local representatives to remove causes. They owe it as a duty to the state to instruct them not to remove causes. If they choose to run that risk, at the discretion of their local agents or attorneys, they ipso facto run corresponding risk of revocation of their licenses. It will not do that they stand indifferent between their duty to the state and the discretion of their local agents. If will not do, in complying with their obligations to the state, that their principal officers, a thousand miles away, with little knowledge or control of litigation here, act bona fide; they must see to it that their local representatives, with all practical control of litigation here, are prohibited from acting mala fide.

Second. The statute requires that foreign insurance companies taking license here, “ shall first appoint an attorney in this state, on whom process of law can be served; ” “ and any process issued, etc., in this state, and served upon such attorney, etc., shall be deemed a sufficient service of process upon such company.” It was the attorney so appointed by the relator who made application for the corporation to remove and removed the action, for which the relator’s license was revoked.

As between the insurance company and the state, it appears to us quite manifest that, as to all process of state courts served upon him, the attorney in fact so appointed stands here, for the purposes of his appointment, for the corporation, and possessed of all its power in the disposition of process against it, served upon him. He may have general or special instructions from the corporation, what course to take in each action or in all actions. The state is not privy to these, and has no concern with them. The state requires the appointment of an attorney in fact, in whom the corporation can confide, in place of the corporation itself, for the purposes of actions against it. It may be presumed that the attorney will [233]*233act for tbe interest and according to tbe instruction of tbe corporation. But as between bim and tbe state, as between bim and suitors bere against tbe corporation, he possesses tbe power of tbe corporation over tbe process served upon bim; tbe same power that be has over process against himself personally. He represents, pro hac vice, tbe corporation with all its power in tbe premises. And bis disposition of tbe process served upon bim, bis control of the action instituted by tbe process, is tbe disposition, tlie control, of tbe corporation itself. Tbe ideal being of tbe corporation can act only through its servants; and as between it and tbe state, its statutory attorney is its sole servant in tbe premises, vested with its whole power. As between tbe corporation and tbe state, be is, quoad hoc, tbe corporation itself.

This is no new principle in this court. It is the same on which the judgments in Bass v. Railway Co., 36 Wis., 450, and Craker v. Railway Co., id., 657, went; and is indeed the same on which Railroad Co. v. Finney, 10 Wis., 388, and other cases in this court, and Weed v. Railway Co., 17 N. Y., 362, and other cases elsewhere, really rest. In Bass v. Railway Co., it is said of officers of railroad trains: “We

Free access — add to your briefcase to read the full text and ask questions with AI

Related

People ex rel. Agins & Klugerman, Inc. v. Board of Health of the Department of Health
197 A.D. 562 (Appellate Division of the Supreme Court of New York, 1921)
State ex rel. Gay v. Reyburn
138 S.W. 79 (Missouri Court of Appeals, 1911)
State ex rel. White v. Dickerson
33 Nev. 540 (Nevada Supreme Court, 1910)
People Ex Rel. Lodes v. Department of Health
82 N.E. 187 (New York Court of Appeals, 1907)
State ex rel. Taylor v. City of Superior
83 N.W. 1100 (Wisconsin Supreme Court, 1900)
Neu v. Voege
71 N.W. 880 (Wisconsin Supreme Court, 1897)

Cite This Page — Counsel Stack

Bluebook (online)
40 Wis. 220, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-ex-rel-continental-insurance-v-doyle-wis-1876.