(b) Stipulations limiting place of bringing suit. The general rule as to agreements in the policy as to where suits shall be brought is that such stipulations limiting the place of bringing an action on an insurance contract are invalid as against public policy, or as affecting the jurisdiction of the courts. The principle established seems to be that while one may waive his right to submit a difference actually pending with another to the decision of the courts of justice, yet public policy will not permit him to contract in advance that he will not resort to the courts in any question which may thereafter arise. Slocum v. Western Assur. Co. (D. C.) 42 Fed. 235; Amesbury v. Bowditch Mut. Fire Ins. Co., 6 Gray (Mass.) 596; Hall v. People's Mut. Fire Ins. Co., 6 Gray (Mass.) 185; Bartlett v. Union Fire Ins. Co., 46 Me. 500; Nute v. Hamilton Mut. Ins. Co., 6 Gray (Mass.) 174; Insurance Co. v. Morse, 20 Wall. 445, 22 L. Ed. 365; Mutual Reserve Fund Life Ass'n v. Cleveland Woolen Mills, 82 Fed. 508, 27 C. C. A. 212; Hartford Fire Ins. Co. v. Hon, 66 Neb. 555, 92 N. W. 746, 60 L. R. A. 436. Such a stipulation, waiving the right to sue on the policy anywhere but in the home state of the corporation, was also held invalid in Missouri as infringing an act requiring an agent, as preliminary to the right to do business, to file a resolution of the company in the county where he was to operate, authorizing suits in the state, in which process should be served on such agent (Reichard v. Manhattan Life Ins. Co., 31 Mo. 518). And where the contract was made and the death occurred in another county, a clause limiting the county where suit should be brought was held void as violating a statute allowing insurance companies to be sued in the county where the contract was made or in which death occurred (Matt v. Iowa Mut. Aid Ass'n, 81 Iowa, 135, 46 N. W. 857, 25 Am. St. Rep. 483). In New York, however, the Supreme Court has taken the opposite position, holding that a stipulation limiting the county where suit must be brought does not limit the jurisdiction of the court, the Supreme Court being the same court in whatever county it sits, and that the provisions of a statute directing the venue of the action might be waived by the parties (Greve v. Etna Live-Stock Ins. Co., 81 Hun, 28, 30 N. Y. Supp. 668). After filing an affidavit to the merits and pleading the general Rev. St. Mo. 1855, p. 884. 4 Code Iowa 1873, § 2584. issue, it is too late to object that, by stipulation of the policy in suit, the exclusive jurisdiction over the action belongs to the court of another county (Smith v. Peoples' Mut. Live Stock Ins. Co., 173 Pa. 15, 33 Atl. 567). There is, however, no valid objection to a stipulation in a policy by which the insured agrees to restrict himself to a particular and appropriate form of remedy in the courts (Eggleston v. Centennial Mut. Life Ass'n of Iowa [C. C.] 19 Fed. 201). In this case the company only agreed to pay over the amount received by it from assessments which it promised to levy on other members, and it was held that an action at law for damages would not lie, though the company refused to levy any assessment, the insured having stipulated to sue only in equity to compel an assessment. (c) Charter provisions limiting place of bringing suit. Where the charter of the company or other statute undertakes to limit the place of bringing suit, any conditions of the limitation must be complied with in order to make the limitation effective. Indiana Mut. Fire Ins. Co. v. Routledge, 7 Ind. 25; Arnet v. Milwaukee A company, whose charter contains a provision limiting the county where actions may be brought but also limiting the scope of its operations, may, by taking advantage of subsequent statutes enlarging the field of action of domestic insurance companies, bring itself under the general statutes relative to the venue of actions (Knox County Mut. Ins. Co. v. Bowersox, 6 Ohio Cir. Ct. R. 275). A general statute, authorizing an action against an insurance company in any county where it has an agency, on a cause of action arising out of a transaction of such agency, is not an unconstitutional interference with the rights of a company whose charter limits suits against them to a particular court. The later act only affects the remedy (Howard v. Kentucky & L. Mut. Ins. Co., 13 B. Mon. [Ky.] 282). A clause in the charter of an insurance company providing that, on notice of a loss within 30 days, the directors should determine the amount of the loss, and that if dissatisfied with such determination the insured might bring suit at the next term of court in the county where the company was established, has been held not an express or implied repeal of the general law permitting the insured to sue in the county of his residence (Martin v. Penobscot Mut. Fire Ins. Co., 53 Me. 419). (d) Venue. The question of venue in actions on policies of insurance is almost exclusively governed by statutory rules, and the determining factors are various. It may safely be stated that an action may always be brought in the county where defendant has its principal office, whether under express enactment or independent of any statutory provision. But the Massachusetts statute tacitly permits a resident of another state to sue a domestic insurance company in any county of the state. Allen v. Pacific Ins. Co., 21 Pick. (Mass.) 257; Boynton v. Middlesex In Missouri a foreign insurance company may be sued in any county in the state (Stone v. Travelers' Ins. Co., 78 Mo. 655). Under the Georgia statute providing that any insurance company having an agency or more than one place of doing business in the state shall be subject to suit within the county where the principal office of such company is located, or in any county where such company may have an agency or place of doing business, or in any county where such agency or place of doing business was located at the time the cause of action arose, where the contract was made in the state, but the company maintained no agency there, suit may be brought in any county where the company can be found (Equity Life Ass'n v. Gammon, 119 Ga. 271, 46 S. E. 100). In some of the states the venue may be based on the fact of defendant's having an agency in the county. In Nebraska it is broadly held that a domestic insurance company is situated in any county in which it maintains a servant or agent for the transaction Rev. St. Me. c. 81, § 6. 6 Ga. Civ. Code (1873) § 3408, (1895) § 2145; Civ. Code, 1895, § 2145; Mass. Rev. St. (1836) c. 90, § 16; Rev. Laws (1902) c. 167, § 7; W. Va. Code, c. 123, $ 1, 2; Code Iowa, § 3499. 7 Mass. Rev. St. (1836) c. 90, § 16; Rev. Laws (1902) c. 167, § 7. These provide that an action between a private corporation and a natural person may be brought either in the county of the latter's residence or in that where the corporation has its place of business or holds its annual meetings. • Neb. Code Civ. Proc. § 55; Pub. Gen. Laws Md. 1904, art. 75, § 23; Ga. Civ. Code (1873) § 3408, (1895) § 2145; Rev. St. Mo. 1899, § 997. of business (Bankers' Life Ins. Co. v. Robbins, 53 Neb. 44, 73 N. W. 269; Id., 55 Neb. 117, 75 N. W. 585). And so in Kentucky a foreign insurance company having resident agents in different counties with identical powers may be sued in either of such counties (Owen v. Howard Ins. Co., 9 Ky. Law Rep. 147; Id., 87 Ky. 571, 10 S. W. 119). The West Virginia courts hold that the insertion in the statute relating to venue of a provision specifically referring to actions on insurance policies does not restrict such actions to the counties mentioned in such provision, but that such insertion was an extension and not a limitation of plaintiff's rights, so that plaintiff might sue under any section of the statute that he could make fit his case (Carson v. Phoenix Ins. Co. of Hartford, Conn., 41 W. Va. 136, 23 S. E. 552). Under the Maryland act 10 providing that where a fire insurance company has an agent in a county in which a building is situated which is burned while insured by it, suit may be brought in any court of competent jurisdiction as other suits are brought, by service on such agents, the courts hold that suits may be brought in the counties where such agents reside (Henderson v. Maryland Home Fire Ins. Co., 44 Atl. 1020, 90 Md. 47). The Georgia act 11 allows an insurance company to be sued in any county where it has an agency, which agency was located there when the contract was made or when the cause of action accrued. Under this act it is held that it is not sufficient that an agency was located in the county where the suit is brought, when the contract was made or when the cause of action arose, if there be none there when suit is brought. Empire State Ins. Co. v. Collins, 54 Ga. 376; Merritt v. Cotton States 9 W. Va. Code, c. 123, §§ 1, 2, provide, as far as affects actions on insurance contracts, that the action may be brought in any county (a) where any defendant resides; (b) in case a corporation is defendant, where the principal office is or the chief officer resides, and if neither of these is in the state, where it does business; (c) if it be against a nonresident, where he may be found, or may have estate or debts due him; (d) in an action on an insurance policy, in the county in which the insured property was situated, or in which the person whose life was insured had a legal residence when the right of action accrued; (e) in any county wherein the cause of action or any part thereof arose, though none of the defendants reside therein. 10 Pub. Gen. Laws Md. 1904, art. 75, § 23. 11 Ga. Civ. Code (1873) § 3408, (1895) § 2145. The act applies to foreign as well as to domestic corporations (Equity Life Ass'n v. Gammon, 119 Ga. 271, 46 S. E. 100). An averment that the company had an agent in the county is not equivalent to the jurisdictional requirement that it had an agency (Atlanta Acc. Ass'n v. Bragg, 102 Ga. 748, 29 S. E. 706). And the averments as to defendants having or not having an agency in the county where suit is brought are essential to the stating of a cause of action (Equity Life Ass'n v. Gammon, 118 Ga. 236, 44 S. E. 978). And the appointment of an agent in a county who is left free to establish his own office at any point he may wish, or to have none at all, the expenses of any office established to be met by the agent and not by the company, is not the establishment of an agency which will give the courts of the county jurisdiction of a suit against the company (Orebaugh v. Equity Life Ass'n, 42 S. E. 208, 115 Ga. 842). In many states 12 the place where the contract was made is a determining factor in the question of the county in which suit should be brought. Cameron v. Mutual Life & Trust Co., 96 N. W. 961, 121 Iowa, 477; Mutual Fire Ins. Co. v. Hammond, 106 Ky. 386, 50 S. W. 545. The provisions of the Iowa Code that insurance companies may be sued in any county in which their principal place of business is kept "or" in which the contract was made are not equivalent definitions of the same county, but are intended to permit a choice of places (Teller v. Equitable Mut. Life Ass'n of Waterloo, 108 Iowa, 17, 78 N. W. 674). Where an application for insurance is made by letter to agents in another county, and the policy is issued by them, an action on the policy is based on a transaction in the county where the agency is located (Sun Mut. Ins. Co. v. Crist [Ky.] 39 S. W. 837). Where the policy, issued from the home office and sent to the local agent for delivery, does not correspond with the application, the contract is not complete till accepted by the insured, and the place of the contract is the local agency and not the home office (Yore v. Bankers' & Merchants' Mut. Life Ass'n, 88 Cal. 609, 26 Pac. 514). And an association which operates on the assessment plan in paying benefits and which designates its business as insurance is an insurance company, within the meaning of these 12 Code Iowa (1897) § 3499; McClain's Code Iowa, 1888, § 3789; (1897) Ann. Code, § 3499; Ky. Civ. Code Prac. § 71. |