Thach v. Continental Travelers' Mutual Accident Association.

MRS. ALMA T. THACH v. CONTINENTAL TRAVELERS' MUTUAL ACCIDENT ASSOCIATION.

(Nashville. December Term, 1904.)

1. COURT OF CHANCERY APPEALS. Finding of facts is conclusive on supreme court, when.

The finding of facts by the court of chancery appeals, where there is evidence to sustain it, is not subject to review in the supreme court. (Post, p. 276.)

2. FOREIGN CORPORATIONS.

Process cannot be served on

resident attorney acting in that capacity alone. Jurisdiction of a nonresident corporation cannot be obtained by service of process on a resident attorney who has been retained simply in that capacity; especially where it had never established any agency or place of business in this State, nor had any agents here. (Post, pp. 278-285.)

Code cited and construed:

Secs. 4543-4546 (S.).

Acts cited and construed: 1887, ch. 226.

Cases cited, approved, and distinguished: Insurance Co. v. Spratley, 99 Tenn., 332, 172 U. S., 603; State v. Insurance Co., 106 Tenn., 287; Pope v. Manufacturing Co., 87 N. Y., 137; Harshey v. Blackmarr, 89 Am. Dec., 520.

3. PLEA IN ABATEMENT. To jurisdiction is not waived by answer to the merits, when.

An answer to the merits, after a plea in abatement to the jurisdiction has been overruled, will not confer jurisdiction, and will not deprive the defendant of his right to rely, in the supreme court, upon the overruled plea in abatement. (Post, pp. 285-287.)

Acts cited and construed: 1897, ch. 121.

Thach v. Continental Travelers' Mutual Accident Association.

4. SAME. Pleas in abatement and in bar may be filed simultaneously, or plea in abatement may be filed independently, and if overruled, then a plea in bar may be filed.

Pleas in abatement and pleas in bar are not required to be filed simultaneously, but may be so filed; or a plea in abatement may be filed independently, and if it is overruled, a plea in bar may then be filed. (Post, pp. 287, 288.)

Acts cited and construed: 1897, ch. 121.

Cases cited and approved: Railroad v. McCollum, 105 Tenn., 624; Sewell v. Tuthill, 4 Cates, 271.

FROM FRANKLIN.

Writ of error from the Chancery Court of Franklin County.-T. M. MCCONNELL, Chancellor.

W. T. SANDERS, H. C. THACH, and LYNCH & LYNCH, for complainant.

O. W. ANDERTON and ESTILL & LITTLETON, for defendant.

MR. JUSTICE MCALISTER delivered the opinion of the Court.

The object of this bill is to recover from the defendant association $2,000, with interest, on an accident policy issued by defendant to Dr. Stephen D. Thach, the husband of complainant. The indemnity provided by

Thach v. Continental Travelers' Mutual Accident Association.

the policy was against death as a result of a "physical bodily injury, through external, violent and accidental means." The policy was issued on the 18th of June, 1898, and Dr. Thach died in Franklin county, Tennessee, October 1, 1900.

It is alleged in the bill that notice of the injury and death of the insured, accompanied by the proper proofs thereof, was given to the defendant in accordance with the provisions of the policy. It was also alleged that the defendant had been doing business in this State, soliciting and issuing insurance policies, but, so far as known to complainant, it has no resident agent in this State, except an attorney at law, O. W. Anderton, who is its attorney and agent at Winchester, Tennessee. Process was served upon said attorney, as agent of the defendant association, and a copy of the same, together with a copy of the bill, was mailed to its home office, as prescribed by the statute. On the 10th of June, 1901, defendant, by counsel, interposed, a plea in abatement to the jurisdiction of the court; stating therein that it entered its appearance for this purpose.

It is averred in the plea that defendant is a corporation of the State of Indiana, and organized as such under the laws of that State; that it is a mutual company, and has no capital stock; that its office and principal place of business are in the city of Indianapolis, Indiana; that it has no other office or place of business; that it has not now and never had an office or agency 114 Tenn-18

Thach v. Continental Travelers' Mutual Accident Association.

in Tennessee, or any other State outside of the State of Indiana, and when this suit was instituted, and process issued thereon, and its alleged service was made, it had no office or agency in Tennessee; and that no person or persons were authorized to represent it as agent in said State. It is further averred in the plea that at no time did Mr. Anderton, the attorney upon whom the process was served in this case, have authority as agent to act for it, and that when this suit was brought, and the process was served upon him, he was not its agent, attorney, or representative in any capacity, and that he is not now its agent or attorney in any matter or thing. It is further averred in the plea that no subpoena or notice of the filing or pendency of this action has ever been served upon it or its president, or upon any one authorized to accept service for it, and that it is not now and never has been engaged in transacting or doing business as an insurance company in the State of Tennessee. This plea is verified in the manner prescribed by law, and complainant joined issue on it.

It appears that on the nineteenth of June, 1903, the chancellor overruled the plea in abatement, adjudging that Mr. Anderton was, in the sense of the statute, an agent of the defendant association, and that service of process upon him was sufficient, and gave the court jurisdiction of the case. The company thereupon asked leave and was granted thirty days in which to file an answer, but, as a matter of fact, its answer was not filed until May 23, 1904. It is presumed that a further ex

Thach v. Continental Travelers' Mutual Accident Association.

tension of time to file the answer was granted by the court or extended by the courtesy of counsel.

The company, in its answer, admits that Dr. Thach had a policy in said association at the time of his death, and admits that he came to his death about the time stated in the bill, but denies that his death was the result of accidental means. The following clause in the policy is then set out as follows:

"This certificate of insurance does not cover injuries nor death of which there is no visible mark upon the body of the insured, nor does it cover acts committed by the insured while under mental aberration, nor shall it cover suicide, whether the person is sane or insane; nor shall it cover accidental injury received while following any occupation other than that named by the insured in his application for insurance, except as provided in paragraph 2 hereof."

It is then averred in the answer that Dr. Thach came to his death by his own hand, having committed suicide on or about October 1, 1900, and that thereby the company is exonerated from all liability under said policy.

Proof was taken, and on the final hearing the chancellor adjudged liability against the company for the full amount of the policy, with interest thereon; making, in all, a recovery of $2,428.33.

The court of chancery appeals affirmed the decree of the chancellor. The cause is now before this court on writ of error sued out by the defendant company.

Two errors have been assigned: