Rago vs. Federation of Sick Benefit Societies.

Insurance Societies-Appointing Insurance Commissioner as Agent-Failure to Appoint-Validity of Service-Act of June 25, 1895.

A foreign Beneficial Insurance Society engaged in business in Pennsylvania without appointing the Insurance Commissioner its agent upon whom service could be made as required by the Act of June 25, 1895. In a suit brought against the society, service was made on the Insurance Commissioner. Held: That the service was valid as the society could not take advantage of its own delinquency in failing to appoint him as agent as required by the Act of Assembly.

No. 2306 January Term, 1913. C. P. Allegheny County.

J. C. Sherriff, for plaintiff.

Scott & Purdy, for defendant.

FORD, J., May 15, 1915. This is a rule ex parte defendant, to show cause why the service of the writ and judgment entered in default, should not be stricken off. The statement of claim sets forth that the defendant is a corporation created by the laws of the State of Connecticut, duly registered in the State of Pennsylvania, and authorized to transact business therein.

The Sheriff's return, made January 24, 1913, shows acceptance of service of the summons by Samuel W. McCulloch, Deputy Insurance Commissioner, "insofar as I have authority under the law. The Society not having been duly registered in this office and not having officially designated the Insurance Commissioner as its attorney."

Subsequently, on April 15, 1913, judgment was entered in default of an affidavit of defense. On June 20, 1914, the defendant moved the Court to strike off the service of the writ and set aside the judgment for the reasoninter alia-that the Sheriff's return does not set forth that the acceptance of the Deputy was made in the absence of the Insurance Commissioner. By leave of Court, the return was amended so as to show that at the time of the service the Commissioner was absent and his duties were performed by the Deputy.

The defendant further alleges that it does not appear either by the plaintiff's statement or the Sheriff's return that the defendant is a foreign corporation doing business in this State, and avers that the defendant is a foreign corporation but is not doing business in the State of Pennsylvania and, therefore, not required to register in the State Department.

The reasons, though certain facts are set forth, are not verified by affidavit. The sixth paragraph alleges that at the time of service the defendant company had agents in this State upon whom service could have been made implying the defendant was engaged in business in this State and herein had agents acting in its behalf.

To the rule to show cause, the plaintiff filed an answer in which he says that the defendant is a fraternal or relief society, organized and existing under the laws of the State of Connecticut; that it was, and had been doing business in this State; organized and maintained branch or subordinate societies, one at Duquesne in this county, of which the plaintiff's decedent was a member; employed agents, solicited insurance, issued certificates or policies of insurance, and otherwise conducted business in the State. To plaintiff's answer defendant made no reply.

No testimony was taken in support of this rule, but from the averments contained in the statement of claim, the reasons in support of the rule and answer thereto, it appears; that the defendant is a foreign corporation; was doing business in this State; and had not appointed the Insurance Commissioner as its attorney upon whom processes might be served.

Rago vs. Federation of Sick Benefit Societies.

The question to be determined is, whether the return, as amended, shows service of the writ in the manner required by law, and involvs a consideration of the Act of June 25, 1895, P. L. 280.

Section 1 of the Act provides, "that all fraternal, beneficial and relief societies * * * now doing business or hereafter admitted to do business within the State, and not having its principal office within the State, and not being organized under the laws of the State, shall appoint in writing the Commissioner of Insurance, or his successor in office, to be its true and lawful attorney upon whom all lawful processes in action or proceeding may be served, and in such writing shall agree that any lawful process against it which is served on said attorney, shall be of the same legal force and validity as if served upon the association. When legal process, against any such association is served upon such Commissioner, he shall immediately notify the association of such service by letter prepaid * * *."

It does not appear that the Commissioner notified the defendants as required by the act. It may be presumed that he performed his duty. If so, the delay in making application to set aside the service should be explained.

The obligation to file a writing appointing the Commissioner of Insurance as its attorney is imposed for the protection of the citizens dealing with the society, and is a condition precedent to the right of the society to do business in this State. A fraternal, beneficial or relief society will not be permitted to relieve itself from liability by pleading its failure to comply with the requirements of the Act of Assembly. The law presumes that to have been done which the law and the rights of the parties contracting with the company required to be done.

In Sparks vs. National Masonic Association, 73 Fed. 277, it was held that when by the statute of a state an insurance company transacting business in such state is required to file with a designated officer of the state a written appointment of such officer as the person upon whom process, directed against such company, may be served, such officer becomes, from the fact of its transacting business therein, the representative of the company with regard to the service of such process, irrespective of whether such appointment has been so filed or not; Commonwealth vs. Railway Mail Association, 33 Pa., County Court 529. If an insurance company is doing business in this State it cannot take advantage of its own violation of the law to escape service.

In the case at bar, the defendant is a foreign fraternal or beneficial society doing business in this State, and cannot set up that it had not appointed the Commissioner of Insurance as its attorney upon whom service of process might be made and thereby defeat the jurisdiction of the Courts of this State. If it were otherwise, it would be possible for an insurance company doing business in this State to place itself beyond the reach of processes and prevent an action in this State by a citizen with whom it had contracted.

Now, May 15, 1915, the rule is discharged.

New Salem Cumberland Presby. Church vs. McClellandtown Presby. Church. Trial-Agreement to Dispense With Jury—Striking off Judgment—Act of April 22, 1874.

Where the parties to an action, by agreement filed, have dispensed with trial by jury and submitted the decision of the case to the Court under the Act of April 22, 1874, P. L. 109, the only manner in which a valid judgment can be entered is in accordance with the provisions of that Act. Judgment taken for default of an answer to a rule for judgment on the whole record will be stricken off.

Rule to strike off judgment. No. 392 September Term, 1913. C. P. Fayette County.

Lackey, Spurgeon & Lackey, for plaintiff.

Robinson & McKean, for defendant.

VAN SWEARINGEN, P. J., June 29, 1915.—On June 3, 1912, the board of school directors of German Township, by resolution unanimously and regularly adopted, decided to acquire for school purposes a certain lot of ground in the village of McClellandtown, known as the Cumberland Presbyterian Church property, which lot then was not actually used or held for church purposes. Not being able to agree upon terms of purchase with the reputed owners of the land, the board of school directors entered upon, took possession of, and occupied, said lot of ground in accordance with the provisions of Section 605 of Article VI, of the Act of May 18, 1911, P. L. 309. The matter then was so proceeded in that viewers appointed by the court determined that the amount of damages sustained by the owners of the property by reason of the taking thereof by said board of school directors was $2,000, which sum, on account of the same being claimed by both the McClellandtown Presbyterian Church and the New Salem Cumberland Presbyterian Church, was paid into court pending the determination by the court of the rightful owner of the fund. Later, by agreement of counsel, an issue was framed by the court with the New Salem Cumberland Presbyterian Church as plaintiff and the McClellandtown Presbyterian Church as defendant, for the purpose of determining which of the parties was entitled to the money, the pleadings in the case to be in accordance with the terms of the agreement filed.

By the agreement of counsel the parties dispensed with trial by jury and submitted the decision of the case to the court, in accordance with the provisions of the Act of April 22, 1874, P. L. 109, the plaintiff in the issue to file a statement of claim within thirty days after the filing of the agreement, and the defendant to file an answer thereto within 30 days after the filing of the plaintiff's statement and the service of a copy thereof on the defendant, and thereafter the case to come to trial for determination by the court in regular course. A statement, answer, replication, and answer to the replication, were filed. On October 27, 1914, alleging that the defendant had not set forth in its pleadings any allegations that would entitle it to a recovery of the fund in court, that the defendant would not be entitled to judgment even though it established the truth of all the allegations contained in its pleadings, and that the allegations contained in the pleadings of the plaintiff remained undisputed and not denied, and were such as entitled the plaintiff to said fund, the plaintiff took a rule on the defendant to show cause why judgment upon the whole record should not be entered for the plaintiff. The rule was made returnable on the third Monday of November, 1914. On March 1, 1915, no answer having been filed to the rule, counsel for the plaintiff procured an order from the court making the rule absolute. On the following day counsel for the defendant, alleging that

New Salem Cumberland Presby. Church vs. McClellandtown Presby. Church. they had considered the rule taken by plaintiff's counsel inappropriate for any purpose in the proceeding, and had expected it to go upon the argument list and be heard in regular order, and that judgment thereon had been entered without notice to them, took a rule on the plaintiff to show cause why the judgment entered on March 1, 1915. should not be stricken off and the case restored to its original status. That rule now is before us, and arguments thereon have been heard.

The order for judgment was made by a member of the court not now on the bench, on the opening day of a busy term of court, when there was no opportunity for examination and judicial consideration of the matter, doubtless without sufficient knowledge or information as to the exact nature of the proceeding, but in the belief that the case was a proper one for judgment for want of an answer to the rule. The contention of the defendant is that the judgment was entered inadvertently and illegally and should be stricken off. It is contended that after it had been agreed by counsel that the case should be heard by the court under the Act of April 22, 1874, P. L. 109, the only manner in which a valid judgment can be entered is in accordance with the provisions of that Act. With that contention of counsel we agree. The Act provides that in the disposition of cases under its provisions the decision of the court shall be in writing, stating separately and distinctly the facts found, and the court's conclusions of law, and shall be filed in the office of the prothonotary or clerk of the court wherein the case is pending, that notice thereof shall be given by the prothonotary or clerk to the parties or their attorneys, and that if no exceptions thereto be filed within thirty days after service of such notice judgment shall be entered thereon, but that if exceptions to the findings of facts or conclusions of law be filed within said thirty days, the court, or the judge thereof who tried the case, may, upon argument, order judgment to be entered according to the decision previously filed, or make such modification thereof as in justice and right shall seem proper, subject always, nevertheless, to review by writ of error or appeal in the Supreme Court. The manner in which judgment was taken in this case is absolutely inconsistent with the provisions of the act and the judgment should not be permitted to stand. The parties entered into a solemn agreement, reduced to writing and filed, submitting the case to the decision of the court under the provisions of the Act of Assembly cited, and the case cannot be disposed of in any other way without the consent of both of the parties.

And now, June 29, 1915, for the reasons given in the opinion herewith filed, the rule to strike off judgment is made absolute, the judgment entered on March 1, 1915, is stricken from the record, and the case is restored to the status existing immediately prior to the taking of the rule for judgment.

Blick vs. Cockins.

Personal Property-Distribution Of-Joint Bank Account-Interest on Mortgages.

In the distribution of personal property, a joint bank account vests in the survivor. Bonds purchased by funds from a joint bank account vests in the survivor in the same manner as if the money had remained in bank.

Interest on mortgages accrues de die in diem and is apportionable.

Hearing to determine ownership of property claimed by James M. Cockins. No. 1139 October Term, 1909. C. P. Allegheny County.

Horace J. Miller, for plaintiff.

Patterson, Crawford, Miller & Arensberg, for defendant.

SHAFER, P. J., June 16, 1915.-The parties have agreed as to most of the property in possession of James M. Cockins. An order has been made in relation to it, reserving certain matters as to which they were not agreed. By further agreement between the parties the matters in controversy have been reduced to the following items: The ownership of five bonds, of balances in two banks, of certain jewelry, of a lot in California, and of the interest on mortgages collected by Cockins as executor of his wife, part of which was earned before her death. From the evidence taken, we find the facts in regard to the ownership of these items to be as follows:

(1) The bank balances in question were balances of accounts with "James Cockins and Marianna M. Cockins, subject to the order of either or survivor.” Moneys were deposited in these accounts by both of them, most of it perhaps by the wife. We are of opinion, however, that this makes no difference, and even if all by the wife it would now belong to the survivor. She had a right had she chosen to do so, to give property over to herself and husband as joint owners, and the deposit of it in this way had the effect. We find, therefore, that these deposits belong to James M. Cockins.

(2) Four of the bonds in question, namely, two bonds for $1,000 each of the City & Suburban Railroad, and two of the Wilmington and Weldon Railroad Company for $1,000, were purchased by moneys drawn out by the parties from the accounts above stated, and were intended to be held by the. parties in the same way, that is, as joint owners with survivorship. The bonds were not registered in any manner whatever. We are of opinion that having been purchased with funds which had been so deposited they now belong to James M. Cockins as the money would if it had not been drawn from the bank.

(3) A fifth bond for $1,000 of the Carolina Central R. R. Co. was not purchased by checks upon the joint account, but by Mrs. Cockins herself. The testimony in regard to this bond is that, while it was bought with the money of Mrs. Cockins, it was left unregistered for the same reason, and as the witness said "it was understood that these bonds were our common property." We are of opinion that the title to this bond is in far different condition to that of the four above referred to, and that the mere understanding or intention of Mrs. Cockins without any act which would show the ownership of the bond was other than in herself is not sufficient to give her husband any title. We find, therefore, that this bond belonged to Mrs. Marianna Cockins.

(4) It appears from the evidence that J. M. Cockins collected, after his wife's death, interest on mortgages which became due after her death, a part of which however was earned before her death. As interest accrues de die in diem it is, unlike rents and like charges, apportionable at common law. We are of opinion, therefore, that these sums received as interest are apportionable.

(5) Mrs. Cockins was at the time of her death the owner of certain jewelry, the items of which are as follows: One sapphire diamond ring, one 3stone diamond ring, one princess ring, one brooch with cluster of diamonds, one small gold watch. As we understand, it is not claimed by the plaintiff that the