Opinion
Argued March 11, 1908
Decided April 21, 1908
Sewell T. Tyng and Gilbert E. Roe for appellant. Albert P. Massey for respondent.
This action was brought on a judgment recovered in the state of North Carolina against appellant, a life insurance company organized under the laws of the state of New York, by respondent's assignor, one Carter, a resident of the former state.
Said judgment was recovered on a contract of insurance made by appellant with a resident of South Carolina, which is said to have been assigned by the latter to Carter while the appellant was transacting the business of insurance in North Carolina. The judgment was based on a substituted service made in the latter state on an individual designated by the appellant for that purpose in accordance with statutes requiring it to make such designation as a condition of doing business there, and in effect prohibiting it from revoking such designation so long as any liabilities remained outstanding against it in said state. Said service was not made, however, until after the appellant had discontinued the transaction of its business in North Carolina and had in terms revoked said designation. ( Hunter v. Mutual Reserve Life Ins. Co., 184 N.Y. 136.)
The appellant did not appear in the original action and it is urged by it that the various statutes referred to requiring it to designate some person upon whom service of process might be made and forbidding it to revoke such designation were adopted only for the protection of those persons residing in the state of North Carolina with whom original contracts of insurance might be made, and were not enacted for the protection of an assignee of a contract of insurance although residing in said state if such contract was originally made with a person living outside of the state.
This appeal has been argued plainly and expressly on the assumption by the appellant as well as by the respondent that the contract of insurance upon which the original judgment was recovered was transferred to the North Carolina assignee several years before the appellant ceased doing business in that state and attempted to revoke its designation of a representative for purposes of service of process, and that it was transferred in good faith and not merely for the purpose of enabling such assignee to bring suit in the state where he lived. And of course the further inference follows from the facts so assumed that for several years such assignee while living in said state paid dues to and maintained the validity of the contract with the appellant. Upon this assumption we think that the statutes adopted by the state of North Carolina prevailed for the protection of such assignee and that appellant could not withdraw from the state and cancel its designation and power of attorney so as to prevent service of process in that state in behalf of such assignee in any action brought upon said contract of insurance. This we think is the fair interpretation of such statutes in the light of what was said in Woodward v. Mutual Reserve Life Ins. Co. ( 178 N.Y. 485) and in Hunter v. Mutual Reserve Life Ins. Co. ( 184 N.Y. 136).
But when we examine the record submitted to us we are unable to find any competent proof that the contract of insurance upon which the North Carolina action was brought was assigned to a resident of that state several years before the appellant attempted to cancel its power of attorney. Our attention has not been called to any such evidence and we have been unable to discover the same by our examination. Still we must believe that the learned counsel for the appellant was fully acquainted with the facts which were established and that his failure either by his brief or by his oral argument to raise any question about the existence of said facts, which are alleged in various ways, while he argues that the existence of such facts did not give the North Carolina court jurisdiction, must be deemed to indicate his intent to waive the prior question of proof. We are unable to take any other view of the course adopted by him than that he desires to have us decide the substantial question involved on the theory very likely that any evidence now wanting would be supplied on another trial.
In accordance with these views we think that the order and judgment appealed from should be affirmed, with costs.
CULLEN, Ch. J., HAIGHT, VANN, WERNER, WILLARD BARTLETT and CHASE, JJ., concur.
Order and judgment affirmed.