Opinion of the Court.

213 U. S.

premium for insurance, or who adjusts or settles a loss or pays the same for such insurance corporation, or in any manner aids or assists in doing either. Under this section, in part at least, the sheriff undertook to make service upon Dr. Mason. The record clearly discloses that Mason had authority to adjust and settle the loss which was the subject of the plaintiff's claim. It is true that the statute says that service may be upon "any person within the State who adjusts or settles the loss," etc. This language clearly has reference to the authority of the person whom the statute declares to be competent to receive service of summons, and the statute, in effect, provides that the person clothed with such power shall be capable of receiving service upon the corporation. The statute designing to reach one having the authority of the company for the purpose named, it is immaterial that the loss was not actually settled. This section (7992) is limited to the cases of companies not incorporated under the laws of the State, and not authorized to do such business within the State by the superintendent of insurance.

This law was in force when Dr. Mason came into the State clothed with full authority to settle the loss. The company must be presumed to have acted with knowledge of this statute. The company could only be served with process through some agent. It was competent for the State, keeping within lawful bounds, to designate the agent upon whom process might be served. It chose to enact a statute providing that an agent competent by authority of the company to settle and adjust losses should be competent to represent the company for the service of process. When the company sent such an agent into Missouri, by force of the statute he is presumed to represent the company for the purpose of service, and to be vested with authority, in respect to such service so far as to make it known to the foreign corporation thus coming within the State and subjecting itself to its laws. Lafayette Insurance Company v. French, 18 How. 404, 408.

It is not necessary that express authority to receive service

of process be shown. The law of the State may designate an agent upon whom service may be made, if he be one sustaining such relation to the company that the State may designate him for that purpose, exercising legislative power within the lawful bounds of due process of law. This was held in effect in Connecticut Mutual Life Insurance Company v. Spratley, 172 U. S. 602.

We think the State did not exceed its power and did no injustice to the corporation by requiring that when it clothed an agent with authority to adjust or settle the loss, such agent should be competent to receive notice, for the company, of an action concerning the same.

It is further contended that the defendant company was not doing business within the State of Missouri. That it is essential, in order to obtain jurisdiction over a foreign corporation, having, as in the case at bar, neither property nor agent in the State, that it be doing business in the State is settled by numerous decisions of this court. St. Clair v. Cox, 106 U. S. 350; Goldey v. Morning News, 156 U. S. 518; Barrow Steamship Company v. Kane, 170 U. S. 100; Connecticut Mutual Life Insurance Co. v. Spratley, 172 U. S. 602; Conley v. Mathieson Alkali Works, 190 U. S. 406; Lumbermen's Insurance Company v. Meyer, 197 U. S. 407; Peterson v. Chicago, Rock Island & Pacific Railway Company, 205 U. S. 364.

Was the defendant doing business in the State of Missouri? The record discloses, and the court has found, that it had other insurance policies outstanding in the State of Missouri. Upon these policies undoubtedly premiums were paid, and it was the right of the company to investigate losses thereunder, to have an examination of the body of the deceased in proper cases, and to do whatever might be necessary to an adjustment or payment of any loss. The record shows that the company,s ,sent Dr. Mason to Fayette to investigate the loss sued for in this case, and later, and at the time of the service of the process, Mason was in Missouri with full authority to settle the loss in controversy.

Previous cases in this court have not defined the extent of the business necessary to the presence of a foreign corporation in the State for the purpose of a valid service; it is sufficient if it is doing business therein. We are of opinion that the finding of the court in this case is supported by testimony, and that the corporation was doing business in Missouri.

It is urged that it clearly appears from the testimony in this case that Dr. Mason was sent into the State of Missouri because of the fraud and artifice of the plaintiff, and that in such case the law will not permit a service of summons to stand. It is undoubtedly true that if a person is induced by artifice or fraud to come within the jurisdiction of the court for the purpose of procuring service of process, such fraudulent abuse of the writ will be set aside upon proper showing. Fitzgerald Const. Co. v. Fitzgerald, 137 U. S. 98. "The fraud of the plaintiff," says the counsel for the plaintiff in error, "consisted in inducing the company by artifice to confer upon Dr. Mason authority to compromise the suit."

Upon the testimony before the court the Circuit Court reached the conclusion that the company was not induced by fraud or artifice to send Dr. Mason to the State of Missouri. This court has jurisdiction to review, under clause 5 of the act of March 3, 1891, cases in which the question of jurisdiction alone is involved, and which are duly certified here for decision. And where the decision of the court below is clearly wrong, even upon a question of fact, it may be set aside under the power conferred by the statute upon this court. We think this is the effect of the reasoning in Goldey v. Morning News, 156 U. S. supra; and Mexican Central R. R. Co. v. Pinkney, 149 U. S. 194.

It is contended by counsel for the plaintiff in error that the evidence is undisputed and clearly demonstrates the fraudulent conduct of the plaintiff in obtaining service in this case. But we are not prepared, on this question of fact, to say that the court below committed plain error. The court might have found upon the testimony that there was a bona fide attempt

to settle the controversy between the parties, and that it was only when they failed to settle that service of summons was made upon Mason, as the agent of the company. There is testimony tending to show that both parties expected an adjustment of the claim to be made at this meeting, which was held for that purpose. There is testimony from which it might be inferred that there was a bona fide offer to permit an examination at that time of the remains of the deceased. We do not feel authorized to find as against the testimony set forth in the bill of exceptions, and the finding of the court below, that the purpose in writing the letter of February 20, and procuring authority to be conferred upon Dr. Mason to settle the case, and to come into the State of Missouri for that purpose, was a mere fraudulent scheme to obtain service upon the insurance company.

As the sole question before us pertains to the sufficiency of the service under the facts disclosed, we reach the conclusion that the judgment of the Circuit Court must be affirmed.

Affirmed.

TURNER v. AMERICAN SECURITY AND TRUST

COMPANY

APPEAL FROM AND IN ERROR TO THE COURT OF APPEALS OF THE DISTRICT OF COLUMBIA.

No. 101. Argued March 9, 10, 1909.-Decided April 5, 1909.

Where the issue is whether a person is of sound or unsound mind, a lay witness, who has had an adequate opportunity to observe the speech and conduct of that person, may, in addition to relating. the significant instances of speech and conduct, testify to the opinion formed at the time of observation as to the mental capacity of such person. While a general rule cannot be framed for all cases, and in clear cases

of abuse the appellate court should reverse, the determination of whether a witness is qualified to state his opinion as to the mental VOL. CCXIII-17

condition of a testator is for the trial judge who has all the evidence and the witness before him, and in this case the trial judge does not seem to have abused his discretion as to the admission of testimony. Evidence as to an alleged delusion of testator thirty years before execution of the will held to be properly excluded both because of remoteness and of the tendency to raise a collateral issue as to whether the statements connected therewith were or were not actually false. Where the wife as caveator attacks testator's soundness of mind because he referred to himself at times as a widower and at times as divorced, an agreement of separation and a deed referring to himself as widower admitted solely to explain why testator so referred to himself held competent for that purpose, but evidence by the wife as to her reasons for signing the agreement and other instruments, in which she joined with her husband as his wife, were properly excluded. The admission of incompetent evidence is not reversible error if subsequently it is distinctly withdrawn from the jury, and so held in this case where a letter was erroneously admitted but the presiding judge, at request of the party objecting to its admission, instructed the jury that nothing in such letter was to be taken as evidence of truth of the statements therein or even to be used for purposes of crossexamination.

29 App. D. C. 460, affirmed.

THE facts, which involve the validity of the will of Henry E. Woodbury, are stated in the opinion.

Mr. J. J. Darlington and Mr. Charles F. Carusi for appellant and plaintiff in error.

Mr. William F. Mattingly and Mr. Stanton C. Peelle for appellees and defendants in error.

MR. JUSTICE MOODY delivered the opinion of the court.

In this case we are asked to review, on appeal and writ of error, a judgment of the Court of Appeals of the District of Columbia, affirming a decree of the Supreme Court of the District sitting as a Probate Court, which admitted to probate certain paper writings purporting to be the will and codicils thereto