Peters v. Queen Insurance

Beck, J. The act of 1861, providing for the situs of suits against insurance companies, and the service of process in suits brought thereunder, is codified in the Code of 1873, as follows: “§ 3408. Whenever any person may have- any claim or demand upon any insurance company having agencies, or more than one place of doing business, it shall be lawful for such person or persons to institute suit against said insurance company within the county where the principal office of such company is located, or in any county where said insurance company may have an agency, or place of doing business was located at the time the cause of action accrued, or the contract was made, out of which said cause of action arose.” Section 3409 declared: “In all such suits, service shall be effected upon such insurance company by leaving a copy of the bill or writ with the agent of the company, if any; if no agent should be in the county, then at the agency or place of doing business, or where the same was located at the time such cause of action accrued, or the contract was made, out of which the same arose." These sections were- construed in Empire State Insurance Company v. Collins, 54 Ga. 376, wherein it was held, that, “under sections 3408-3409 of the code, an action against 'an insurance company must be instituted in the county where its'principal office is located, or where it has an agency or place of doing business when suit is brought, and which agency or place of business was located in the county at the time the cause of action accrued, or the contract was made, out of which the cause of action arose.” This case was decided at the January term, 1875. Subsequently section 3408 was amended by inserting between the word “ business ” [442] and the word “was” the following: “or in any county where such agency or place of doing business” (Acts 1878-9, p. 54), so that the section as amended would read as follows: “Whenever any person may have any claim or demand upon any insurance company having agencies, or more than one place of doing business, it shall be lawful for such person or persons to institute suit against said insurance company within the- county where the principal office of such company is located, or in any county where said insurance 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 accrued, or the contract was made, out of which said cause of action arose.” This amendment wrought a change in the original act. In the Collins case the latter part of the section was construed in conjunction with the former, so that in order to locate the veiiue of the suit there must have been an agency or place of doing business at the time the suit was brought, and this agency or place of doing business must have been located in such county at the time of the accrual of the cause of action or the making of the contract. By the amendment suits against an insurance company having 'an agency or more than one place of doing business may be located, (1) in counties where the principal office of such company is located, or (2) in any county where the company may have an agency or place of doing business, or (3) in any county where such agency or place of doing business was located at the time the cause of action accrued, or (4) in any county where such company had an agency or place of doing business at the time when the contract was made, out of which the cause of action arose. Though this act was in existence at the time the ease of Atlanta Home Insurance Company v. Tullis, 99 Ga. 225 (25 S. E. 401), was decided, no reference was made to it in the decision, and the court followed the ruling pronounced in the Collins case. Inasmuch as no reference was made to the amending act of 1879, this decision is not to be accepted as a construction of that act. Except as amended by the act of 1902 (Acts 1902, p. 53), substituting the word “ agent ” for “ agency,” sections 3408-3409 of the Code of 1873, as amended by the act of 1879, are codified in the present Civil Code, §§ 2563-2564, with some immaterial verbal changes. No constitutional infirmity is raised in the record as to that part [443] of the act which allows a suit to be located in a county where the contract was written, or cause of action accrued, without respect to the company’s having an agent or place of doing business there at the time the suit is instituted, nor is any constitutional objection urged against the provision that if no agent should be in the county, the process in the suit brought under this section may be served where the agent or place of doing business was located at the time the cause of action accrued, or the contract was made, out of which the same arose. This court is committed by numerous precedents to the proposition that a constitutional question must be made in the court below, before this court will undertake to pass upon it. Whatever may have been done sometimes in particular eases, or whatever may be the practice in courts of error in some other jurisdictions, this is the rule laid down by the decisions of this court. Sanders Mfg. Co. v. Dollar Savings Bank, 110 Ga. 559 (3), 563 (35 S. E. 777); Roberts v. Keeler, 111 Ga. 185 (36 S. E. 617); Laffitte vi Burke, 113 Ga. 1001 (39 S. E. 433); Sayer v. Brown, 119 Ga. 539 (3), 542 (46 S. E. 649); Newkirk v. Southern Ry. Co., 120 Ga. 1048 (48 S. E. 426); Carswell v. Wright, 133 Ga. 714 (4), 718 (66 S. E. 905; Cooper v. National Fertilizer Co., 132 Ga. 529 (64 S. E. 650), and many others. Indeed, Civil Code (1910), § 6203, declares that “The Supreme Court shall not decide any question unless it is made by a special assignment of error in the bill of exceptions,” etc. Unless we hold this section of the code unconstitutional, it is conclusive of the question. At any rate, it indicates a concurrence between the legislative ■ and judicial views on this question. Thus by repeated decisions of this court the rule is firmly fixed as to eases coming before us upon writs of error. Is the case different as to questions certified to the Supreme Court by the Court of Appeals? In the amendment to the constitution, establishing the Court of Appeals and declaring its jurisdiction and practice, a rule is prescribed as to this matter. Civil Code (1910), § 6505 (codifying a portion of this amendment), contains the following provisions on the subject of the certification of questions by the Court of Appeals to this court: “Where, in a case pending in the Court of Appeals, a question is raised as to the construction of a provision of the constitution of this State or of the United States, or as to' the constitutionality [444] of an act of the General Assembly of this State, and a decision of the question is necessary to the determination of the case, the Court of Appeals shall so certify to the Supreme Court; and thereupon a transcript of the record shall be transmitted to the. Supreme Court, which, after having afforded to the parties an opportunity to be heard thereon, shall- instruct the Court of Appeals on the question so certified, and the Court of Appeals shall be bound by the in-’ struction so given. . . The Court of Appeals may at any time certify to the Supreme Court any other question of law concerning which it desires the instruction of the Supreme Court for proper decision; and thereupon the Supreme Court shall give its instruction on the question certified to it, which shall, be binding on the Court of Appeals in such case.” It will be seen that by this amendment to the constitution provision was made for the Court of Appeals to certify to this court two classes of questions: (1) constitutional questions; (2) any other questions on which they may desire instruction. As to constitutional questions, it specifies a question raised in a case in the Court of Appeals, and which is necessary for the decision of the case there, and provides, that that court shall so certify to -this court. The “ other ” questions mentioned evidently referred to questions other than such constitutional questions, for which special provision had been made. To hold that, on a general question of the Court of Appeals making no reference to any constitutional question, this court would search the constitution to determine whether any conflict between it and the act of the legislature under consideration could be found, would, we think; conflict with the whole spirit of our own decisions as well as with the manifest intention of the constitution itself. As the record does not disclose any constitutional attack made upon these code sections, and as the Court of Appeals has asked no instruction on that subject, we can not interpret them to mean anything other than what is clearly expressed. We therefore answer the question propounded by the Court of Appeals in the negative.