Judgment affirmed.

(37 Ind. App. 420)

TERRE HAUTE & I. R. CO. v. PRITCHARD. (No. 5,649.)

(Appellate Court of Indiana, Division No. 2. March 7, 1906.)

1. TRIAL-INSTRUCTIONS-APPLICABILITY PLEADINGS AND EVIDENCE.

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Plaintiff alleged in one count that prior to his taking passage on defendant's train he had return ticket, and that while so riding defendant's agents violently assaulted and ejected him, though he tendered the conductor his ticket, and that he (plaintiff) never at any time refused to deliver the ticket, and conducted himself in a gentlemanly and orderly manner. In another count he alleged that before he was given an opportunity to produce his ticket the conductor continued to beat and bruise him in the face and body, although plaintiff made no resistance, during which time plaintiff was hunting for his ticket, etc. Plaintiff testified that he had the ticket in his possession, but was unable to find it, and that he offered to pay his fare, while the conductor testified that plaintiff refused to give a ticket or pay fare. Held, that instructions that the fact that a passenger has a ticket in his possession is insufficient to entitle him to passage, unless he tenders the same to the conductor when demanded, but that, even if plaintiff refused to pay his fare or surrender his ticket, the carrier had no right to use unnecessary force or violence in ejecting him, were not objectionable as not applicable to the issues and evidence. 2. DAMAGES PERSONAL INJURIES ISSUES AND PROOF.

An allegation in a complaint that plaintiff was greatly bruised about the head, face, and body was sufficient to authorize evidence of particular injuries to the head and face, including injury to the senses of sight and hearing.

Appeal from Circuit Court, Hendricks County; Thos. J. Cofer, Judge.

Action by Del Pritchard against the Terre Haute & Indianapolis Railroad Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Jas. L. Clark, Jno. G. Williams, and D. P. Williams, for appellant. Brill & Harvey, for appellee.

COMSTOCK, J. Action to recover damages for the alleged wrongful ejectment of appellee from appellant's cars on the 9th day of May, 1896. The complaint is in two paragraphs. The first alleges that the plaintiff purchased from the defendant's agent

at Amo, in Hendricks county, a round-trip ticket entitling him to ride on its line of cars from said town of Amo to said city of Indianapolis and return, and took passage on said road on said date, and rode over said line of railroad from Amo to Indianapolis, and surrendered to the conductor in charge of said train that portion of his ticket which entitled him to ride to said city of Indianapolis, and retained that portion of said ticket which entitled him to ride on said day from said city of Indianapolis to said town of Amo, and on said day plaintiff took passage on the defendant's cars at the city of Indianapolis for said town of Amo with said return ticket in his possession; that while plaintiff was so riding on defendant's cars the defendant's agents and employés in charge of said train wrongfully and violently assaulted him, and, although plaintiff tendered to the regular conductor his ticket which entitled him to ride to said town of Amo, said conductor violently choked him, struck him several heavy blows in the face, kicked him in the head and body, and stopped said train and forcibly ejected plaintiff from said cars in the country, at no regular station, more than 10 miles from said town of Amo; that plaintiff never at any time refused to deliver his said ticket and was in all things conducting himself in a gentlemanly and orderly manner; that by reason of said assault the plaintiff was greatly bruised about the head and face and body and was compelled to walk to Plainfield, a distance of about 3 miles, etc.; and by reason of said assault he became nervous and prostrated and humiliated, all in the sum of $1,000, etc. The second paragraph is the same as the first, except that it alleges that plaintiff was assaulted "before he was given an opportunity to produce his said ticket, and the conductor in charge of said train continued to beat and bruise him in the face and body, although the plaintiff was making no resistance; that all of said time plaintiff was hunting for his ticket, and so stated to said conductor, and told him (said conductor) that he had in his possession a ticket entitling him to ride to said town of Amo, and asked him (said conductor) to allow him to find said ticket, but said conductor continued to beat and bruise him, without allowing him an opportunity to find said ticket, and with great violence ejected him from said cars." The cause was put at issue and the trial by jury resulted in a verdict, on which judgment was rendered in favor of plaintiff in the sum of $300. Appellant's motion for a new trial was overruled. That action of the court is relied upon for reversal of the judgment.

The giving of instruction No. 3 is made one of the reasons for a new trial. Said instruction reads as follows: "A conductor or agent on a railroad train has a right to expel a passenger for the nonpayment of his fare or upon his refusal to deliver his ticket.

within a reasonable time, but he has no right to use any more force than is reasonably necessary for that purpose; and in this case, even if you should find that the plaintiff refused to pay his fare or surrender his ticket, the agent of the company had no right to use unnecessary force or violence toward the plaintiff, and if you find that he did use more force than was reasonably necessary, you should find for the plaintiff." It is contended that the giving of this instruction was error, because "upon a theory not set up in the pleadings nor within the evidence in the cause"; that the complaint proceeds upon the theory that the plaintiff was rightfully upon appellant's train, and was wrongfully ejected; that the instruction is on the theory that he was wrongfully on defendant's train and was properly ejected, except that excessive force was used. We think it proper in this connection to set out instruction No. 2 given. It is as follows: "It is not sufficient that a passenger has a ticket in his possession, but he must offer to surrender it, and actually tender it to the proper conductor when demanded, to entitle the passenger to the rights of a passenger." Appellee testified that he had the ticket in his possession, but was unable to find it upon demand; that he offered to pay his fare. The conductor of appellant's train testified that the plaintiff refused to give a ticket, or to pay his fare. These instructions, we think, are pertinent to the pleadings and within the evidence. Some fault is found with other instructions; but, considered together, they fairly present the law, and were not prejudicial to appellant. Objection was made and overruled to certain questions addressed to W. M. O'Brien, witness for the plaintiff. They were as follows: "(26) What effect upon the hearing

or tingling sound of the ear, such as he showed you at the time, have upon the patient's hearing? A. Of course there might be a congestion of the drum, due to the status of blood, or something of that nature that caused a congestion or stopped the circulation to some extent. (27) I will ask if from that time to the present, if a patient had a kind of ringing noise in his ear at the time, if it could be attributed to the injury that you observed there near his ear, which you have described. A. It is probable it could be. * * (31) I will ask you, if he had never had any bruises or gashes or cuts about the location of his ear until that particular time, and from the time of receiving it that he had a ringing noise in his ear, and was slightly deaf or his hearing impaired, if that could be attributed to the injury you found at that time. A. Yes; I think so." The admission of this testimony is also set out as reasons for a new trial. It is argued that this testimony was inadmissible, because "there is no allegation in the complaint that said injury was received by the plaintiff." The complaint alleges that the plaintiff was greatly bruised about the head, face, and body. This allegation was sufficient to authorize the introduction of evidence of particular injuries to the head and face, including that to the senses of sight and hearing. There is evidence in support of the verdict, and we find no reversible error. Affirmed.

ROBY, C. J. (concurring). I think the motion for a new trial ought to have been sustained; but there is evidence tending to support the verdict, and I therefore reluctantly

concur.

The statute of North Carolina provided as a condition of doing business in the state by a foreign insurance company that it should execute a power of attorney authorizing the state insurance commissioner to represent it on service of process in proceedings against it, and provided that such power of attorney should be irrevocable so long as any liability of the company remained outstanding. A citizen of New Jersey holding a policy in a foreign insurance company assigned the same to a citizen of North Carolina for the purpose of instituting suit thereon against the insurance company, a citizen of the state of New York, which, prior thereto, had attempted in good faith to withdraw from the state of North Carolina. Held, that the suit was unauthorized. 2. SAME-REVOCATION OF POWER OF ATTORNEY-EFFECT AS TO NONRESIDENTS.

A foreign insurance company doing business in North Carolina served a written notice on the insurance commissioner of such state withdrawing from business in the state and revoking a power of attorney given by it to such commissioner, and thereafter did no business in the state, except that premiums were remitted to its home office and losses on policies issued to residents of the state were sent from the home office by mail, and in a few instances an adjuster appointed to settle the claim with a supposed nonresident followed him for such purpose into North Carolina into which state he had removed. Held that the revocation of the power of attorney was effective as against citizens of New York, who took out policies in such state after such revocation, and who thereafter assigned their claims arising therefrom to residents of North Carolina for the purpose of having judgment taken thereon in such state.

3. SAME.

A provision in a statute authorizing a foreign insurance company to do business in the state on the execution of a power of attorney to the state insurance commissioner, which shall be "irrevocable so long as any liability of the company remains outstanding" in the state, does not prevent its effective revocation as to nonresident policy holders so as to prevent the subsequent prosecution by the assignees of insurance policies held by such nonresidents of their claims against the corporation by service on the insurance commissioner.

Appeal from Supreme Court, Appellate Division, Second Department.

Action by Wilson R. Hunter against the Mutual Reserve Life Insurance Company. From a judgment of the Appellate Division (89 N. Y. Supp. 849, 97 App. Div. 222), entered in favor of plaintiff on submission of controversy, defendant appeals. Modified.

Frank R. Lawrence, George Burnham, Jr., and Gordon T. Hughes, for appellant. Paul Armitage and Albert P. Massey, for respondent.

HISCOCK, J. The defendant is a life insurance company, organized under the laws of this state. The judgment appealed from awarded recovery upon and for the amount of five personal judgments recovered against

it in the state of North Carolina. The validity of said latter judgments as a sufficient basis for the present recovery is dependent upon a purported service of process upon the insurance commissioner of North Carolina as a representative for that purpose of the defendant, the latter in no other manner having been served upon or having appeared in said actions. These original judgments allowed recovery on account of five contracts of insurance issued by defendant, in one case to a resident of North Carolina while it was doing business there, and in the remaining cases to residents, respectively, of New York and New Jersey, who, long after defendant had attempted to withdraw from business in North Carolina, as hereinafter stated, assigned their claims to residents of said state. It is conceded by appellant that the judgment appealed from should be affirmed so far as it allows recovery upon the judgment under the North Carolina policy. But it is claimed that as to the other purported judgments the courts of the latter state did not acquire jurisdiction by the attempted service of process, and that as to them the judgment before us should be reversed. We think that the appellant's contention is well founded.

Some of the facts now presented to us and of the principles applicable thereto were fully considered by this court in Woodward v. Mutual Reserve Life Ins. Co., 178 N. Y. 485, 71 N. E. 10, 102 Am. St. Rep. 519, and it will only be necessary now to so far state the facts presented as may be necessary to make plain the reason for distinguishing this case from that. For several years before March 6, 1899, the defendant had been engaged in transacting its life insurance business in North Carolina under provision for service of process upon a local representative for that purpose. Upon the date mentioned the Legislature of that state adopted a statute known as the "Willard Law," which created an insurance department and provided that no foreign insurance company should be admitted and authorized to do business until it had complied with certain conditions. Among these was one to the effect that it should "by a duly executed instrument constitute and appoint the insurance commissioner, or his successor, its true and lawful attorney upon whom all lawful process in any action or legal proceedings against it might (may) be served, and therein should (shall) agree that any lawful process against it which may be served upon its said attorney should (shall) be of the same force and validity as if served on the company, and the authority thereof should (shall) continue in force irrevocable so long as any liability of the company remains outstanding in this commonwealth." The defendant duly executed and filed an instrument in accordance with the provisions of said act and continued for a time to transact business.

Upon February 10, 1899, the same Legislature had adopted a statute known as the

"Craig Act," which, in substance, provided that any foreign insurance company desiring to transact business in the state of North Carolina after June 1st then ensuing, must become a domestic corporation of said state, and attaching penalties to any attempt to transact business in violation of said provisions.

May 17, 1899, defendant's board of directors adopted a formal resolution referring to the Craig act and stating its determination not to comply therewith, but instead to withdraw from the transaction of business in said state, and declaring that the appointment of the insurance commissioner as an attorney upon whom process might be served be "cancelled, revoked and annulled.". Upon May 20th duly certified copies of this resolution were filed with and in the office of the insurance commissioner. Upon May 18, 1899, the defendant did withdraw all of its agents from the state of North Carolina, and since that date has had no agent therein, premiums upon policies theretofore issued by it to residents of said state being remitted to it by mail at its home office in New York city where the policies and premiums were payable, and losses upon policies issued by it being paid by checks from said office. Outside of this, the defendant does not appear to have transacted any business whatever in the state since its withdrawal save in four specific instances, two of them occurring a considerable period before and two a considerable period after the purported institution against it in the foreign state of the suits in question. Without going into the details of these transactions, it may be briefly stated that three of them involved the settlement of losses under or readjustment of policies issued to residents of North Carolina, while the defendant was regularly transacting business there, and in the fourth case a special adjuster appointed to settle a claim with a supposed resident of Washington followed him for such purpose into the state of North Carolina whither he had removed. More than two years after its above-mentioned withdrawal from, and revocation of power of attorney in, North Carolina, residents of New York and New Jersey made assignment of alleged claims under policies there issued to them to residents of North Carolina, and upon them four of the original judgments in question were secured through a purported service of process under the power of attorney as, already stated.

Defendant conceding its liability upon the judgment upon the North Carolina policy, we need spend no considerable time in reviewing and restating the decision of this court in the Woodward Case, whereby it was, in effect, held that a stipulation made by a foreign insurance company as a condition of doing business in North Carolina that process might be served in its behalf upon some official as long as there might be any 76 N.E-68

outstanding liability upon its part under any contract of insurance, is an agreement for the benefit of and enforceable by a holder of a policy issued to him in that state which could not be subsequently canceled or evaded by the insurance company so long as the liability in behalf of such policy holder continued. The only question which we need discuss is whether the principles of that case, or any others invoked by the present plaintiff, prevented defendant from so canceling and revoking its power of attorney to the superintendent of insurance under the circumstances disclosed as to bar service upon him as its representative in suits upon claims contracted with persons residing outside of the state of North Carolina, and in no way belonging or transferred to a resident of said state until after the attempted revocation. The learned counsel for the plaintiff largely bases his contention that defendant did not escape service and jurisdiction in North Carolina upon two propositions. He urges, in the first place, that it did not, as it claimed to, discontinue transacting business there, and that for that reason its attempted revocation and withdrawal from the state was ineffective. And, secondly, he insists that the strict letter of its power of attorney to the insurance commissioner for service of process provides that such authority "shall continue in force irrevocable so long as any liability of the company remains outstanding in said (this) commonwealth," and that at the time purported service was made there were existing liabilities outstanding.

It may be assumed at once that if defendant upon a fair construction of language and of its acts did continue generally to transact and carry on the business of insurance in North Carolina after its purported revocation of its power of attorney and withdrawal from such state, the latter should be held ineffectual, to prevent a continuance of the authority of the insurance official to receive service of a summons. The authorization by the company of service up

on

said official was a condition of its transacting business in said state, and so long as such transaction of business continued the company should not be allowed to escape the consequences of its agreement by any deceptive or apparent withdrawal. We do not, however, think that such was the true character of its acts. The Craig act, to which reference has already been made, by its provisions excluded defendant from the transaction of business unless it was willing to become a domestic corporation. It is urged that the Willard act, to which we have also referred, was passed subsequently and was so inconsistent with the former act as to repeal its prohibitory and penalizing provisions. We scarcely agree with this argument. We think that there was room for the provisions of both statutes. The courts of the state where they were passed in effect

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have so held, which certainly should be a matter of considerable weight with us in this discussion. Debnam v. Telephone Co., 126 N. C. 831, 36 S. E. 269, 65 L. R. A. 915; Layden v. Knights of Pythias, 128 N. C. 546, 39 S. E. 47. But whether this is so or not, the defendant apparently in good faith did regard the provisions of the Craig Act as driving it from the state, in the absence of its willingness to be incorporated as a domestic corporation, and its acts then and thereafter performed indicate an intention actually and in good faith to cease doing business there, and to our minds the facts agreed upon do not show any subsequent modification of this intention. It had already issued policies and contracted liabilities in the state which could not be ignored. It dealt with these liabilities so far as it could from its office in New York and the specific acts which are detailed in the submission arose in connection with the settlement and treatment of old liabilities and old business. We do not think that there was any such continuation of an ordinary, substantial and active insurance business as would be necessary to keep alive the power of attorney within plaintiff's contention upon this point. Knights Templars' Indemnity Co. v. Jarman, 187 U. S. 197, 204, 23 Sup. Ct. 108, 47 L. Ed. 139; Frawley v. Penn. Casualty Co. (C. C.) 124 Fed. 259; Doe v. Springfield Boiler Co., 104 Fed. 684, 44 C. C. A. 128.

We, therefore, pass to the consideration of plaintiff's second contention based upon the wording of the power of attorney. In so doing, and in construing this instrument, and determining whether defendant might revoke it and escape from its consequences as to the majority of the judgments involved in this action, we should keep in mind the policy which led to the adoption of the statute under which it was executed. This policy, briefly stated, involved and voiced the determination upon the part of the state that it would not allow a foreign insurance company to exercise the privilege of doing business within its limits without securing to its citizens, who might there be dealt with, an arrangement by which they might institute actions and enforce their contracts and policies at home and without being driven into some foreign state where the company might have its origin and principal place of business. Statutes requiring the execution of some such agreement by foreign corporations as is invoked against the defendant here, have always been regarded as primarily designed for the protection of the citizens of the state enacting the legislation and who might acquire rights under contracts executed with them or for their benefit while they were such citizens. Such was the underlying principle and view which led to the decisions in the Woodward Case, in La Fayette Ins. Co. v. French, 18 How. (U. S.) 404, 15 L. Ed. 451; in

Conn. Mut. Life Ins. Co. v. Spratley, 172 U. S. 602, 19 Sup. Ct. 308, 43 L. Ed. 569; and in St. Clair v. Cox, 106 U. S. 350, 1 Sup. Ct. 354, 27 L. Ed. 222. It would be quite beyond the spirit of those decisions to hold, and we cannot believe that it was the further policy of such legislation to create and perpetuate a local forum to which under guise of an assignment to some resident, nonresidents of far distant states might flock for the purpose of instituting litigation upon contracts issued to them at their homes, against a corporation there readily subject to service and which long before had attempted in good faith to withdraw from the jurisdiction thus hunted out.

Holding this view, we are not willing to decide that defendant's power of attorney was irrevocable as against the four foreign claims upon which recovery was had in North Carolina. It is true that, as the statute required, said power of attorney upon its face was irrevocable so long as any liability of the company should remain outstanding in said state. But it is well settled that a power of attorney, although by its literal terms irrevocable, may be revoked, unless some interest or right founded or created upon the faith thereof requires its perpetuation and continuance. Hunt V. Rousmanier's Adm'r, 8 Wheat. (U. S.) 174, 5 L. Ed. 589; Knapp v. Alvord, 10 Paige (N. Y.) 205, 40 Am. Dec. 241; Story on Agency (3d Ed.) § 476. The citizens of North Carolina who had taken contracts from the defendant while it was there doing business in reliance upon this power of attorney which had been executed for their protection under the requirements of the statute were entitled to have it remain unrevoked as provided by its terms. As we have already seen, they are to be regarded as having made their contracts upon the faith of it, and as against them defendant could not escape from its consequences. But the plaintiffs in the North Carolina actions, who secured their claims from nonresident assignors, occupied no such position. These claims under contracts executed in other states cannot by any possibility be regarded as having been contracted or acquired in reliance upon this provision for service within the state of North Carolina. The assignees, who saw fit to embark upon the acquisition of foreign claims, did not do so in innocent reliance upon the right to bring such suits in their own state, for long before they began the accumulation of claims against the defendant it had formally, and, as we believe, in good faith, withdrawn from the state where they lived and given formal notice of its revocation of the power of attorney. They did not acquire any such right to enforce jurisdiction in the courts of their own state against the defendant as makes it in any way inequitable or unjust that the power of attorney should be revoked. They are not of the class for whose protec