The opinion
Dissenting Opinion
Ms. Special J ustice William J. Habbiso».
In the present case the petitioner for workmen’s compensation benefits has undertaken to sue only the insurance carrier for his employer. The insurance carrier is a foreign insurance carrier qualified to do business in Tennessee. Petitioner has undertaken to sue this insurance carrier in the county of his residence. The insurance carrier has no office or agency in that county, but does have such in other counties of Tennessee. The majority of the Court hold that in order to sue the insurance carrier alone, under these circumstances, petitioner must file his suit in a county where the insurance carrier has an office or agency. I cannot agree to this conclusion. I believe that it is in conflict both with the earlier decisions of this Court in the cases of Cartmell v. Mechanics’ Ins. Co., 167 Tenn. 498 , 71 S.W.2d 688 (1934) (which was not a workmen’s compensation case), T. H. Mastin & Co. v. Loveday, 202 Tenn. 589 , 308 S.W.2d 385 (1957), and Insurance Company of North America v. Lance, 215 Tenn. 376 , 386 S.W.2d 513 (1965) (which were workmen’s compensation cases). Nor can I reconcile the decision with the provisions of T.C.A. sec. 56-303 regulating insurance companies.
The foregoing statute is a part of the general insurance laws dealing with the qualifications of insurance companies to do business. T.C.A. sec. 56-301 expressly provides that no domestic insurance company or foreign insurance company shall commence business in this State *342 until it has, inter alia, complied with the provisions of T.C.A. secs. 56-301 to 56-308, and has received from the Commissioner of Insurance a certificate of authority to do business. T.C.A. sec. 56-303(3) expressly provides that no domestic or foreign insurance company shall be qualified and authorized to do business in this State until:
It shall, by duly executed instrument filed in his office, constitute and appoint the commissioner of insurance and banking and his chief deputy, or their successors, its true and lawful attorneys upon either of whom all lawful process in any action or leg*al proceeding against it may be served, and therein shall agree that any lawful process against it, which may be served upon its said attorney, shall be of the same force and validity as if served on the company, and that the authority thereof shall continue in force, irrevocably, as long as any liability of the company remains outstanding in this state. Any process issued by any court of record in this state and served upon such commissioner or his chief deputy by the proper officer of the county in which said commissioner or his chief deputy may have his office, shall be deemed a sufficient process on said company, and it is hereby made the duty of the commissioner or his chief deputy, promptly, after such service of process by any claimant, to forward, by registered mail, an exact copy of such notice to the company. (See also T.C.A. secs. 56-319 to 56-321).
Until the release of the majority opinion in this case, it has never been required to my knowledge, in any sort of proceeding that a person suing a foreign insurance company must file such suit in a county where the insurance carrier has an office or an agency. Until this decision, the commissioner has been deemed an agent for service *343 of process in every county of the state, and every citizen has been deemed to be entitled to sue in his own county; indeed, it has been considered that T.C.A. sec. 20-401, restricting venue to the county of the residence to the plaintiff and defendant, has been applicable to such cases, because the Commissioner of Insurance and Banking was available for service of process in every county of the state. Suits against foreign insurance companies have been analogized to suits against non-resident motorists. See Cartmell v. Mechanics’ Ins. Co., supra, and Insurance Company of North America v. Lane, supra.
In the case of T. H. Mastin & Co. v. Loveday, supra, it was expressly held by this Court that an employee could follow exactly the procedure which was followed in the present case — -that is, he could sue a foreign insurance carrier in his home county, in a workmen’s compensation case, and have service of process through the Commissioner of Insurance and Banking. This could not necessarily be done, of course, where the employer was also a party-defendant. In such cases it has always been held that the suit must be brought in a county where service of process could be had upon the employer, but the Mastín case involved a suit against the insurer alone.
"While it is true, in the Mastín case, the insurer had no office or agency in Tennessee, the case certainly did not turn upon that fact, and in my opinion that is not a distinction sufficient to justify a different result in the present case. Of course, an employee may always sue his employer, and in no case does he have to join the insurance carrier as a party in workmen’s compensation cases. Until the release of the opinion by a majority of the Court in the present case, however, it had been the understanding of the Bar generally that an employee *344 might sne the insurance carrier only, and that he might bring such suit in the county of his residence, regardless of whether the insurance carrier had an office or agency in that county or not.
I cannot reconcile the majority opinion with the statutes above referred to and with previous decisions of this Court. In my opinion the plea in abatement filed in this case should be overruled, and venue sustained in the county of petitioner’s residence.
I am authorized to state that Me. Justice Creson joins with me in this dissent.