Buchanan v. Iowa State Live Stock Insurance

Citations

• 108 Kan. 520
• 196 P. 249
• 1921 Kan. LEXIS 212

Syllabus

<p>SYLLABUS BY THE COURT.</p> <p>1. Insurance — Foreign Insurance Company■ — Service on Superintendent of Insurance — Statute Construed. A foreign insurance company obtained authority to transact business in the state and filed its consent that it might be brought into the courts by service of summons upon the superintendent of insurance. While conducting business under the state license an insurance contract was executed under which proofs of loss were made, and the loss was paid. Afterwards the agent of the company claimed that the insured had obtained payment of the loss by fraud and false pretenses and instituted a prosecution against the insured, which resulted in a dismissal and a discharge of the defendant. Later the insured began an action against the company to recover damages for malicious prosecution, by the service of a summons on the superintendent of insurance, but after the termination of the prosecution and prior to the commencement of the action for malicious prosecution, the authority granted by the state to the company was revoked by the insurance department, after which it ceased .to do any new business in the state and left the collection of premiums and the closing up of unfinished business in the hands of an agent bank. Held, that the service of summons upon the superintendent of insurance in the suit for malicious prosecution is sufficient to bring the company into court.</p> <p>2. Malicious Prosecution — When Advice of Counsel Will Absolve from Liability. In an action for malicious prosecution the fact that a person took the advice of counsel as to probable cause for instituting the prosecution will not absolve him from liability unless he made a full disclosure of the facts to the counsel.</p> <p>3. Same — Termination of Prosecution. The prosecution must be terminated before an action for malicious prosecution can be maintained, but a dismissal of the prosecution and the final discharge of the defendant satisfies the requirements of the law