State v. Insurance Co.

Wilkes., J. Prior to July, 1894, the Oonnecti-cut ‘.Mutual Life Insurance Oompany prosecuted its business of life insurance in the State of Tennessee through resident agents and local and general agencies. At that date it withdrew from the State, so far as soliciting or attempting to do any new business was concerned, leaving, however, quite a large number of policies in force. Prom July, 1894, to July, 1899, it received from policy holders residing in Tennessee ■ premiums aggregating $137,884.47. Of this sum $134,326.96 was collected on policies originally solicited and taken in the State, and $2,857.50 on policies taken out originally in other States, and whose holders had subsequently moved to the State. Por many years the State has exacted of foreign insurance companies a privilege tax of “2-J per cent, of gross premium receipts, payable semiannually, January and July.” Acts 1893, Oh. 89, Sec. 6 3 Acts 1895, Oh. 160, Sec. 19; Acts 1897, Oh. 2, ■ Sec. 5. .The tax, without interest, due on this volume of business is $3,363.17 on policies taken originally in Tennessee, and $71.43 on policies taken originally elsewhere. — 285 — The defendant’s . contention is that it withdrew from the State and its jurisdiction in July, 1894; that it has not since been “doing business” in the State; and that it is therefore not liable to this tax. What the defendant company did in 1894 was to recall its agents and agencies from the State, and cease to solicit and write new policies. It kept alive its existing policies by receiving premiums thereon as before, except that the money was sent by mail or otherwise to defendant’s agents or agencies outside the State, and not paid to the company in the State. The Chancellor was of opinion that ' the company was not liable for the tax, and so decreed, .and the State has appealed and assigned as error this holding of the Chancellor. The defendant company is a foreign corporation not engaged in interstate commerce, and it is conceded that the Legislature has power to prescribe the terms on which it may be permitted to do business in Tennessee. Ins. Co. v. Ins. Co., 11 Hum., 25; Dugger v. Ins. Co., 95 Tenn., 245; Young v. Iron Co., 85 Tenn., 196. The only question at issue is whether the company, under the facts in the case, after its withdrawal from the State in 1894, leaving a portion of its j)olicies force, was thereafter doing business in Tennessee, by receiving by its ■officers, in another State, through the mails and — 286 — express, the accruing premiums on such policies. It is insisted by the State that to allow an insurance company thus to continue its business by receiving the premiums would be an easy evasion of the law. It must be observed that the tax as laid is not a gross sum for doing business, but a tax upon the gross premiums received by the company. These policies were all upon the usual plan; that is to say, the assured paid the first premium and received the policy. Such payment kept the policy in force for a year. It was the right and privilege of the policy holder to renew the policy for another year, by paying another premium. Such premium is known as a “renewal premium.” It is optional ' with the assured to pay it, but obligatory upon the company to receive it. The company cannot compel the assured to pay a renewal premium, but he can compel the company to receive it, or, what is equivalent, keep the policy alive by tendering it. When the company withdrew from Tennessee (July 1, 1894) there were 369 policy holders in the State (thirty-four of whom had been insured while citizens of other States) holding policies which provided, in terms, that all premiums should be paid at the company’s home office, in Connecticut, unless, for the policy holder’s , convenience, it should, from time to time, be otherwise — 287 — arranged. Many of these policies are ■ still in force, bnt 104 have either matured or lapsed. None of the premiums were, after withdrawal in 1894, received by the company in Tennessee, bnt were sent to it by mail or express to Ken-tueky, or the home office in Connecticut. The Act of the General Assembly pertaining to foreign corporations refers, by its' terms, to their admission, their retirement, and their exclusion. Section 9 of the Act, which provides for the exclusion of such corporations from the State, prescribes the manner in which it shall be done, and ■ says, “Upon the doing of these acts the agents of the company are required to discontinue the issuing of any new policies or the collection of any premiums.” It is argued, therefore, that the Act, by its terms, defines the “doing of business” to be the issuance of policies and collection of premiums in Tennessee, and it is also contended that neither of these things has been done since the withdrawal of the company. We think it clear -that a foreign insurance company which issues to a citizen of Tennessee a policy is not doing business in Tennessee if it receives the application in a foreign State, and without solicitation in Tennessee, and if it, in addition, executes and delivers the policy and receives the premiums in such foreign State. In such case there cannot be. said to be any “doing of business” in Tennessee by the foreign corpora — 288 — tion that ‘would subject it to tas. A tax in suck cases would be invalid and such legislation would be unconstitutional and void. Allgeyer v. Louisiana, 165 U. S., 578: Eastern B. & L. Assn. v. Bedford, 88 Fed. Rep., 7. It is insisted on behalf of the State that the present case is controlled by that of Spratly v. Connecticut' Mutual Life Ins. Co., 15 Pick., 322. In substance that case is this: Prior to 1894 the company, while doing business as a foreign insurance company in Tennessee, insured the life of P. P. Spratly, a citizen of Tennessee, upon an application made in Tennessee, and by a policy delivered in Tennessee, The company afterwards, on July 1, 1894, withdrew from the State. Mr. Spratly died in 1896. Proofs of his death were filed, and claim made by his widow, also a citizen of Tennessee. Thereupon, in May, 1896, the company sent an agent named Chaffee into Tennessee ' “to investigate his claim, and the conditions under which the death occurred.” He was also authorized to, and did, ■ make a proposition of compromise while here (15 Pickle, 324, 332). Under §§ 4543-4546 of the (Shannon) Code it was held that the company' had transactions in Tennessee with regard to the policies, before and at the time ' of their delivery, and was doing business with reference to . them, through Chaffee, in Tennessee, when process was. served on him, and therefore the process and service were suffi — 289 — cient to bring tbe company before tbe Court. 15 Pick., 832. It will be observed; (a) That tbe company had done business and bad this transaction in .Tennessee; (b) That Chaffee, as agent, bad come into Tennessee in a representative capacity, as agent; (c) That be bad come with respect to tbe original Tennessee transaction; and, (d) That undeniably an agent of tbe company was in Tennessee, and in a representative capacity, and consequently tbe sole question was •whether, under such circumstances, process .could be served on tbe agent so as to bind tbe company. It was held under tbe peculiar statute that it could. Tbe ease was carried to tbe Supreme Court of tbe United States, and is reported in 1Y2 U. S., 602. Tbe judgment of tbe Supreme Court of Tennessee was affirmed. Tbe Federal question in the case was whether tbe Court below bad jurisdiction to render a judgment on tbe service of process on Chaffee. If it bad not, tbe company bad been denied “due process of law.” 172 IT. S., 609. Tbe Court held that by continuing tbe old policies in force, and collecting- tbe premiums in another State, and sending a regular general agent into tbe State to investigate and with authority to settle, tbe company was “doing — 290 — business” witbin the State as far as is necessary “within the meaning of the statute.” Shannon,. §§ 4543-6. The provisions of the statute (Shan.), §§ 4543,. 4546, are special and -somewhat peculiar. By the first section it is provided that “any corporation claiming existence under the law of another State found doing business in this State,, shall be subject to suit here to the same extent' that corporations of this State are' by the laws-thereof liable to the same, so far- as relates to-any transaction had, in whole or in part, within, this State, or any cause of action arising here, but not otherwise.” Section 2 of the Act defines what is meant by the terms “found doing business” in this State in these words: “Any corporation having any transactions concerning any property situated in the State through any agency whatever acting for it within this State, shall be held to be doing business within, the meaning of section 1.” Section 3 provides that “process may be served, upon any agent of said -corporation found within the county when the suit is brought, no matter-what character of agent such person may be, and in the absence of such agent it shall be sufficient to serve the process upon any person if found", within the county when the suit is brought, who291 represented the corporation at the time the transaction out of which the suit arose took place. This Court, speaking of- the applicability of the Act to the facts of that case, said: “Not only had the complainant transactions in this State with regard to the policies before and at the time of their delivery, but through its agents was found doing business in respect to them at the time of the institution of this suit, and it cannot be otherwise than that this agent would be reasonably certain to inform his principal of the fact.” It was further said, in regard to the facts of that case: “Certainly the corporation cannot be heard to complain, whatever others might do, because the agent upon whom service was made in this case was at the time within the State as the representative of the complainant, examining for it into the conditions under which Spratly’s death occurred, and, finally, upon the authority of his. employer, submitting a proposition of compromise of the claim now in controversy.” In that case it is evident this Court gave weight to the fact that an agent of the company was within the State negotiating with regard to the settlement of the policy and this, under the provisions of that Act, was “doing business” in such sense as to justify and warrant service of process. It is true this Court said: “From July, 1894, — 292 — down to the time the suit in the Circuit Court was brought, complainant company was doing a limited business in Tennessee. It had a large number of policies in the State, from which it collected it premiums at stated intervals,” and the Supreme Court of the United States said: “Its outstanding policies were not affected by its withdrawal from the State, and it continued to collect the premiums upon them and to pay the losses arising thereunder, and it was doing so at the time of the service of process upon its agent.” Spratly v. Conn. Mutual Life Ins. Co., 172 U. S., 611. Whether these premiums were paid in Tennessee or beyond its borders does not appear by express statement, but it may fairly be inferred from the statement in the opinions that is was treated as if the payments had been made in the foreign State. It is evident, however, that both Courts laid great stress upon the fact that the corporation had an agent in Tennessee adjusting the claim and with authority to settle the same, and this, under the provisions of the Act, was sufficient to authorize service upon him and for holding that the corporation -was “doing business” in the State. Hewever this may be, the question • now before . the Court, is upon a different state of facts and under a different statute. The inquiry is not whether a regular agent, — 293 — doing something in the State for the company in connection with the receipt of premiums, causes it to be “doing business” in the State so as to be sued under the service of process Act of IS 87, but. whether the mere receipt in another State of renewal premiums from persons residing in Tennessee, who remit by mail or otherwise —that and nothing more — is “doing business” in Tennessee within the meaning of the laws regulating and taxing the business of life insurance in Tennessee. It was said in Eastern B. & L. Assn. v. Bedford, 88 Fed. Rep., 4, 17, in regard to this service of process provision of our Code, that it is a special statutory definition for a particular purpose, and ' cannot be perverted to the purposes of an interpretation of another Act, where only a similar phraseology is used for an entirely different purpose. This was said by the Circuit Court of the United States for the Western District of Tennessee, in a case wherein a transaction with a citizen of Tennessee in the State of New York, involving lands in Tennessee mortgaged to the foreign corporation, was held not' to be “doing business” in Tennessee. In Norton v. Union Bank and Trust Co. (8 Am. & Eng. Corp. Cases, N. S., 610) it was held by the Court of Chancery Appeals and the Supreme Court of Tennessee, that a foreign corporation which . had no agent or place of busi — 294 — ness in Tennessee, and had loaned money in another State, on application sent to it through the mail by citizens of Tennessee, and had taken a mortgage, at its home office, on lands in Tennessee to secure the loan, did not “transact business” within the jneaning of the Act requiring foreign companies to register their charters. We think the Spratly case is not conclusive of the real point at . issue in the present controversy. The term or phrase “doing business” does not have, and cannot' have, a uniform and unvarying meaning, but is governed largely by the connection, and in view of the object of the statute, and these statutes are governed largely by the objects intended to be effected by them. We may admit that the receipt of premiums is doing business, but when such receipt is made in a foreign State it does not amount to doing business in Tennessee, but in such foreign State. When the premium is paid and the renewal made and completed in a foreign State, we are unable to see how any business is done in Tennessee. Neither the policy is renewed or continued, nor is the money paid in Tennessee, but both are in the foreign. State. There is nothing done in Tennessee, no new business' done or solicited, no agent' there and no agency, no contract made, no money paid, no receipt for renewal given, and no business done of any character. The postal and express authorities are not the agents — 295 — •of tbe company, but of tbe insured, as tbe company’s policy stipulates tbat tbe premiums shall be paid at tbe home or foreign office. It is said that this view will operate harshly ■upon domestic companies and such foreign companies as continue to issue policies and do an .active business in the State. In other words, that .a company may come into the State and write a large number of risks, then withdraw and collect its premiums in another State, and thus escape taxation while it receives the protection of the Jaws of the State. It is true such condition of affairs might arise, but we cannot decide the question before us upon any consideration of expediency or public policy, but upon a proper construction and application of the law as we find it. We are of opinion this company, under the facts, is not liable for the tax, and the decree-■of the Chancellor is affirmed and the bill of the State is dismissed, _ at its costs.