HEINE v. NEW YORK LIFE INS. CO.No. 10465.

45 F.2d 426 (1930)

HEINE
v.
NEW YORK LIFE INS. CO.
District Court, D. Oregon.
December 1, 1930.
C. T. !!s !nd ". #. $e!broo%, bot& o' (ort)!nd, Or., 'or *)!inti+.
untington, ,i)son - untington !nd C)!r% - C)!r%, !)) o' (ort)!nd, Or., 'or
de'end!nt.
BEAN, District Judge.
This is one of a series of cases pending in this court against the New York Life Insurance Copan! and the "uardian
Insurance Copan!, each of which is a New York corporation, to reco#er on soe two hundred and fort! $ife
insurance po$icies ade and issued %! the defendants in "eran!, in fa#or of "eran citi&ens and su%'ects, and
pa!a%$e in "eran arks. The po$icies of the New York Life Insurance Copan! were issued prior to August (, ()(*,
and those of the "uardian prior to +a! (, ()(,. As a condition to their right to do %usiness in "eran!, the insurance
copanies were re-uired to and did su%it to the super#ision and contro$ of the "eran insurance officia$s, to in#est
the reser#es arising fro "eran po$icies in "eran securities, and to esta%$ish, and the! do now aintain, an office
in that countr! with a resident representati#e or agent upon who ser#ice of process can %e ade.
The actions now pending are %rought and prosecuted in the nae of, or as assignee of the insured %!, certain parties in
the .nited /tates and "eran!, under an irre#oca%$e power of attorne!, %! which the! are authori&ed and epowered
to sue for, co$$ect, recei#e, and receipt for a$$ sus due or owing under the po$icies, or coproise the sae in
consideration of an assignent and transfer to the of the undi#ided 01 per cent. interest in the po$icies and a$$ rights
accruing thereunder.
None of the parties to the $itigation are residents or inha%itants of this district. The p$aintiffs reside in, and are citi&ens
of, the repu%$ic of "eran!. The defendants are corporations organi&ed and e2isting under the $aws of New York, with
their principa$ offices in that state, with statutor! agents in 3regon, upon who ser#ice can %e ade. None of the
causes of action arose here, nor do an! of the ateria$ witnesses reside in the district, nor are an! of the records of the
defendant copanies pertaining to the po$icies in suit in the district, %ut such records are either at the hoe office in
New York or at their offices in "eran!. The courts of "eran! and New York are open and functioning and
copetent to take 'urisdiction of the contro#ersies, and ser#ice can %e ade upon the defendants in either of such
'urisdictions. To re-uire the defendants to defend the actions in this district wou$d ipose upon the great and
unnecessar! incon#enience and e2pense, and pro%a%$! cope$ the to produce here 4three thousand i$es fro their
hoe office5 nuerous records, %ooks, and papers, a$$ of which are in dai$! use %! it in taking care of current
%usiness.
In addition, it wou$d no dou%t consue onths of the tie of this court to tr! and dispose of these cases, thus
necessari$! disarranging the ca$endar, resu$ting in de$a!, incon#enience, and e2pense to other $itigants who are entit$ed
to in#oke its 'urisdiction.
.nder these circustances, the defendants, whi$e conceding that the court has 'urisdiction of the person and su%'ect6
atter, urges that it shou$d refuse, in its discretion, to e2ercise such 'urisdiction.
I unhesitating$! concur in this #iew, for, as said %! +r. Justice 7o$es in Cu%a 8ai$road Co. #. Cros%!, 000 ../. *9:,
:0 /.Ct. (:0, (::, 1; L. Ed. 09*, :, L. 8. A. 4N. /.5 *<= >It shou$d %e ree%ered that parties do not enter into ci#i$
re$ations in foreign 'urisdictions in re$iance upon our courts. The! cou$d not cop$ain if our courts refused to edd$e
with their affairs, and reitted the to the p$ace that esta%$ished and wou$d enforce their rights. ? ? ? The on$! 'ust
ground for cop$aint wou$d %e if their rights and $ia%i$ities, when enforced %! our courts, shou$d %e easured %! a
different ru$e fro that under which the parties dea$t.>
It is apparent that the p$aintiffs are seeking %! these actions to ipose on the defendants a $ia%i$it! under a different
ru$e than >that under which the parties dea$t.>
The courts of "eran! ha#e ru$ed that an! person seeking to reco#er on a ci#i$ contract ade in "eran! prior to
August, ()0*, and pa!a%$e in arks, can on$! reco#er on the %asis pro#ided in the onetar! $aw of ()0*. +anifest$!
the p$aintiffs are not proceeding on an! such theor!.
It is argued %! the p$aintiffs that, %ecause the court has 'urisdiction of the su%'ect6atter and the parties, it has no
discretion, %ut shou$d proceed with the case, regard$ess of where the cause of action arose, or the $aw %! which it is
contro$$ed, or the residence or con#enience of the parties and witnesses, or the difficu$t! the court wou$d encounter in
attepting to interpret and enforce a foreign contract, or the interference with the other %usiness of the court. But that
is a atter resting in its discretion. It a! retain 'urisdiction, or it a!, in the e2ercise of a sound discretion, dec$ine to
do so, as the circustances suggest. The courts ha#e repeated$! refused, in their discretion, to entertain 'urisdiction of
causes of action arising in a foreign 'urisdiction, where %oth parties are nonresidents of the foru. "regonis #.
@hi$ade$phia A 8. Coa$ A Iron Co., 0:1 N.Y. (10, (:) N. E. 00:, :0 A. L. 8. (, and noteB @ietraroia #. New Jerse! A
7udson 8i#er 8!. A Cerr! Co., ()9 N.Y. *:*, )( N. E. (0<B "regonis #. @. A 8. Coa$ A Iron Co., 0:1 N.Y. (10, (:)
N. E. 00:, :0 A. L. 8. (B /tewart #. Litchen%erg, (*, La. ()1, ,; /o. 9:*B /ith #. +utua$ Life Insurance Co., (*
A$$en 4); +ass.5 ::;6:*:B Nationa$ Te$ephone +fg. Co. #. Du Bois, (;1 +ass. ((9, *0 N. E. 1(<, :< L. 8. A. ;0,, 10
A. /t. 8ep. 1<:B Co$$ard #. Beach, ,( App. Di#. 1,0, ,( N.Y./. ;()B "reat Destern 8ai$wa! Co. #. +i$$er, () +ich.
:<1B Disconto "ese$$schat #. .%reit, (09 Dis. ;1(, (<; N. D. ,0(, (1 L. 8. A. 4N. /.5 (<*1, ((1 A. /t. 8ep. (<;:.
As said %! +r. Justice Brad$e! in The Be$gen$and, ((* ../. :11, 1 /.Ct. ,;<, ,;*, 0) L. Ed. (10= >Circustances
often e2ist which render it ine2pedient for the court to take 'urisdiction of contro#ersies %etween foreigners in cases
not arising in the countr! of the foruB as, where the! are go#erned %! the $aws of the countr! to which the parties
%e$ong, and there is no difficu$t! in a resort to its courtsB or where the! ha#e agreed to resort to no other tri%una$s ? ? ?
not on the ground that it has not 'urisdiction, %ut that, fro oti#es of con#enience, or internationa$ coit!, it wi$$ use
its discretion whether to e2ercise 'urisdiction or not.>
/ee, a$so, Charter /hipping Co. #. Bowring, 0,( ../. 1(1, 1< /.Ct. *<<, 9* L. Ed. (<<,.
These, in ! 'udgent, are cases of that kind. The! are actions %rought on causes of action arising in "eran!. The
contract of insurance was ade and to %e paid there and in "eran currenc!. It is to %e construed and gi#en effect
according to the $aws of the p$ace where it was ade. 00 A. A Eng. Enc!. of Law 40d Ed.5 (:1<. The courts of this
countr! are esta%$ished and aintained priari$! to deterine contro#ersies %etween its own citi&ens and those ha#ing
%usiness there, and anifest$! the court a! protect itse$f against a f$ood of $itigation o#er contracts ade and to %e
perfored in a foreign countr!, where the parties and witnesses are nonresidents of the foru, and no reason e2ists
wh! the $ia%i$it!, if an!, cannot %e enforced in the courts of the countr! where the cause of action arose, or in the state
where the defendant was organi&ed and has its principa$ offices. True, the courts of New York ha#e dec$ined to
e2ercise 'urisdiction o#er actions %rought on insurance po$icies sii$ar to those in suit. 7iggins #. N. Y. Ins. Co., 00<
App. Di#. 9;<, 000 N.Y./. ,(), and Eon Nessen6/tone #. N. Y. Life Ins. Co.
(
But that affords no reason wh! this court
shou$d do so. It is to e unthinka%$e that residents and citi&ens of "eran! a! iport %odi$! into this court
nuerous actions against a nonresident defendant, on contracts ade and pa!a%$e in "eran!, and insist as a atter
of right that, %ecause it has o%tained 'urisdiction of the defendant %! ser#ice of its statutor! agent, the ta2pa!ers,
citi&ens, and residents of the district ha#ing %usiness in the court shou$d stand aside and wait the conc$usion of the
case, where, as here, the courts of "eran! and of the hoe state of the defendant are open and functioning.
Judge Tucker, in the state court of +u$tnoah count!, in an a%$e and we$$6considered opinion in a case %rought on one
of the "eran po$icies 4Fahn #. New York5, reached the sae conc$usion.
+otion a$$owed.