
    The Hartford Life Insurance Co. v. Douds.
    
      Insurance — Foreign corporations — Contract with Ohio citizen— Jurisdiction — Money judgment and accounting ■ — Interference with company management — Due process of law — Article XIV, Amendments to U. S. Constitution — Assessments in excess of ' contract rates — Payments not voluntary, when — Continuing trust imposed, when — Statute of limitations runs, when.
    
    1. Upon the filing of a petition in an Ohio court of competent jurisdiction by one of its citizens against a foreign insurance company, based upon a contract for insurance issued by such foreign insurance company to such citizen, such court upon proper service of summons has jurisdiction of the subject-matter to render a money judgment for the amount found due upon such contract, and upon proper proof to make an accounting and render judgment for all sums of money wrongfully obtained under color of such contract; and the exercise of such jurisdiction and the rendering of such judgment do not interfere with the discretion, the internal management or the control of such company, and are not in violation of the 14th Amendment of the Constitution • of the United States.
    2. Where the contract of insurance provides for assessments “according to the table of graduated assessment rates, given hereon, as determined by their respective ages and the number of such certificates in force at the date of such death,” the insurance company is not authorized to levy assessments in excess of the rates provided in the table of graduated assessment rates provided in such policy.
    3. Where the insured pays assessment rates levied in excess of the rates provided in the policy and does not know and has not the means of knowing that he is paying rates in excess of the rates provided in the policy, such payments will not be construed to be voluntary payments either to the company or to the death-benefit fund of such company.
    4. The duty of the insurance company with reference to the distribu-ion of assessments collected under color of the contract-of insurance in excess of the rates authorized in such contract is not different from its duty with reference to the assessments collected by it in accordance with the rates provided in the contract, and equity will impose upon such fund a trust like unto the trust provided in the contract for authorized assessments, to-wit, the-duty of the trustee to distribute such assessments in accordance with the terms of the contract, and such duty is a continuing and subsisting duty until discharged, and the statutes of limitations will not begin to run against the payer of such assessments until he has knowledge that the insurance company has repudiated such obligation, or is distributing such assessments contrary to the provisions of the insurance contract.
    (No. 16833
    Decided November 15, 1921.)
    Error to the Court of Appeals of Franklin county.
    This action was begun in the court of common pleas of Franklin county, Ohio, by present defendant in error, Alonzo J. Douds, against present plaintiff in error, the Hartford Life Insurance Company, for an accounting of excess assessments alleged to have been demanded and collected of plaintiff by defendant, for a money judgment for the amount so found due, and for an order restraining defendant from demanding and receiving an amount in excess of $2.68 per assessment per $1,000 of insurance, and for an order restraining defendant from forfeiting or lapsing the certificate of insurance for non-payment of excessive assessments.
    The suit is based upon a policy of insurance issued by the defendant company to the plaintiff, a copy of which policy is attached to the petition and made a part thereof and reads as follows:
    “EXHIBIT A.
    “Certificate of Benefit not to
    “Membership. exceed $1,000.
    “No.- Age 45.
    “Safety Fund Department.
    “Sample Policy.
    “The Hartford Life and Annuity Ins. Co. “of Hartford, Connecticut.
    “In consideration of the representations, agreements and warranties made in the application here-for, and of the Admission Fee paid; and of the sum of Ten Dollars, to be paid to said Company, to create a Safety Fund, as hereinafter described, and of Three Dollars per annum, for expenses, to be paid as hereinafter conditioned and of the further payment, in accordance with the conditions hereof, of all Mortuary Assessments, does hereby issue this Certificate of Membership in its Safety Fund Department to Alonzo J. Douds, with the following agreements:
    
      “That "said Company will deposit said sum of Ten Dollars, when received, with the Trustee, named in a contract made with it (of which a copy is printed hereon), as a Safety Fund in trust for the uses and purposes expressed in said contract; and shall at the expiration of five years from July 1, 1879, if said Safety Fund shall then amount to Three Hundred Thousand Dollars, or whenever thereafter said sum shall be attained, make a semi-annual division of the net interest received therefrom by it, pro rata among all the holders of Certificates in force in said Department at such times,, who shall have contributed, five years prior to the date of any such .division their stipulated proportion of said Fund, by applying the same to the payment of their future dues and assessments; and that, whenever said Fund shall amount to One Million Dollars all subsequent receipts therefor shall be divided by the said Company in like manner as the interest. Said Company further agrees that if at any time, after said Fund shall have amounted to Three Hundred Thousand Dollars, or after five years from January 1, 1880, if that amount shall not have been attained before that date, it shall fail by reason of insufficient membership, or, shall neglect if justly and legally due, to pay the maximum indemnity provided for by the terms of any Certificate issued in said Department and such Certificate shall be presented for payment to said Trustee by the legal holder thereof, accompanied by satisfactory evidence, as hereinafter provided, of its failure to pay, after demand upon it within the time herein stipu-latéd for limitation of action, then it shall be the duty of said Trustee to at once convert said Safety Fund into money and divide the same (less the reasonable charges and expenses for the management and control of said Fund) among all the holders of Certificates then in force in said Department, or their legal representatives, in the' proportion which the amount of each of their Certificates shall bear to the amount of the whole number of such Certificates in force; and that in such event it shall file with said Trustee a correct list under oath, of the names, residences and amounts of the Certificates of all members entitled to participate in such division. The evidence referred to above to be either certification by said Insurance Company’s President or Secretary that a claim is justly and legally due and that payment thereof has been demanded and refused, or the duly attested copy of a final judgment obtained thereupon in any court of competent jurisdiction, satisfaction of which has been neglected or refused for the period of sixty days from this date. And said Company further agrees that so long as any Certificate of Membership in the Safety Fund Department shall remain in force, said Fund shall be in no wise chargeable or liable for any use or purpose except as above mentioned.
    “Upon the death of the member aforesaid while this Certificate is in force, all the conditions hereof having been conformed to by said member, and on the receipt by the President or Secretary of said Company of satisfactory proofs of such death, an assessment shall be made upon the holders of all Certificates in force in said Department at the date of such death, according to the table of graduated assessment rates, given hereon, as determined by their respective ages and the number of such Certificates in force at the date of such death, and the sum collected thereon (less ten cents per each member assessed for cost of collection) shall be paid — provided, however, that in no case shall the payment upon this Certificate in the event of such death exceed One Thousand Dollars .(less Fifteen Dollars as a post mortem contribution to said Safety Fund, if the deceased member shall not have fully contributed therefor as hereinbefore required, together with any balance due said Company) — to his estate, otherwise to his legal representatives within ninety days after the receipt of such proofs, upon presentation and surrender of this Certificate. All such payments to be made at the Home Office of said Company in lawful money of the United States.
    “And said Company further agrees that such Mortuary Assessment shall be in no wise chargeable or liable for any use or purpose other than for the payment’of Death Claims, except as above mentioned.
    “This Certificate is Issued by the Company and Accepted by the Member Upon the Following Express Conditions and Agreements:
    “1. Application Made Part of Contract. — The application on the faith of which this Certificate issues is hereby referred to and made part of this contract.
    
      
      “2. Of Payments. — The person to whom this Certificate is- issued agrees to pay to said Company Three Dollars per annum for expenses on the first day of the month after date of issue, and at every anniversary thereafter, so long as this Certificate shall remain in force; or by monthly or other pro rata installments of the same in advaiice for periods of less than a year. And also agrees to pay said Company, upon each Certificate that shall become a claim, an assessment in accordance with the Table of Graduated Assessment Rates, as printed hereon, within thirty days from day on which notice bears date. And further agrees to pay said Company the sum of, Ten Dollars towards Safety Fund, within sixty days from the date of this Certificate, which will entitle the holder hereof to all the advantages under said fund, as set forth in the agreement with the Trustees aforesaid, a copy of which is printed hereon and hereby made a part of this contract; all such payments to be made direct to said Company. But with the written permission of said Company attached hereto, said payment required to be made towards the Safety Fund, or any part thereof, may be postponed and made payable at such other times as shall be named in such permission: And, while the whole or any portion of such payment shall remain unpaid, said Company may apply any sum standing to the credit of this Certificate towards such payment.
    “3. Conditions of Acceptance. — The holder of this Certificate further agrees and accepts the same upon the express condition that if either the monthly dues, assessments, or the payment of the Ten Dollars towards the Safety Fund, as herein-before required, are not paid to said Company on the day due, then this Certificate shall be null and .void, and of no effect, and no person shall be entitled to damages or the recovery of any moneys paid for protection while the Certification was in force, either from said Company or the Trustee of the Safety Fund; and that if a legal and just claim to benefit, under the terms of this Certificate, shall arise before said Safety Fund shall have accumulated to Three Hundred Thousand Dollars, or before January 1, 1885, and the sum collected on the assessment to be made in such event shall be paid over, as hereinbefore stipulated; or such claim shall arise after said Fund shall have accumulated to said amount, or after January 1, 1885, and this Certificate shall be fully settled and surrendered; or if any final division from said Safety Fund, as herein-before provided, shall be made by the Trustee thereof on account of this Certificate, then, in such cases, all liability of said Company and of its Safety Fund, on account of this Certificate, shall cease.
    
      “4. Mode of Giving Notice. • — • A printed or written notice, directed to the address of the member, as it appears at the time on the books of the Company, and deposited in the post office at Hartford, or delivered by an agent of the Company, shall be deemed a legal and sufficient notice for all purposes hereof. A transcript of the books of said Company, certified by the Secretary, showing such facts, shall be taken and accepted as conclusive evidence of the mailing of such notice, and of the facts aforesaid, as set forth in such transcript.
    
      “5. Change of Residence of Address. — In case of change of residence, post office address, occupation, or name of the member, or his or her legal representatives, it is agreed on the part of the member that notice thereof in writing shall at once be given to the Secretary of the Company. In case of failure to do so, the Company may proceed for all purposes as if no such change had been made.
    “6. Prohibitions. ■— If the member named in this Certificate shall be personally engaged in blasting, submarine operations, mining under ground, manufacturing poisonous or explosive chemicals, ‘breaking’ or ‘coupling’ on, and ‘making-up’ of, railroad trains, trading or living among savage tribes or nations, or shall be engaged in military or naval service (except in time of peace) without, in each of these cases, having first obtained the written consent of said Company, or shall use alcoholic or narcotic stimulants so as to produce intoxication sufficient to impair his or her health, or to produce delirium tremens, or to cause his or her death, or shall die by self-destruction — feloniously or otherwise— or while intoxicated, or from effects of drunkenness, or in consequence of a duel, or of keeping or visiting unlawful or disreputable resorts, or the violation or attempted violation of the laws of any Nation, State, Province or Municipality, or if there has been any concealment, misrepresentation, or false statement or statement not true made in the application on which this Certificate issues; or if the conditions herein shall not be in all respects observed and performed by the party to whom this Certificate issues; then, and in all such cases, this Certificate shall be null and void, and of no effect, and no person shall be entitled to damages, or the recovery of any moneys paid thereon.
    
      “7. Travel and Residence. —• The member herein named is at liberty to travel by railroad, sea, lake, or river, by all trains, first-class steamers, or sailing vessels, and to visit or reside in any portion of the world other than the residence named in the application herefor, where inhabited and civilized, and free from epidemics, wars, or internal dissensions.
    
      “8. Limitation of Action.'— It is expressly understood and agreed that no action shall be maintained, nor recovery had, for any claim upon or by virtue of this Certificate, after the lapse of one year' from the death of said member; and if no suit or proceedings for such recovery be commenced within one year from the date of death of said member it shall be deemed a waiver, on the part of all parties concerned, of all rights or claims under or by virtue of this Certificate, and as conclusive evidence against the validity of such claim, and this Certificate shall be null and void, and of no effect, and no person shall be entitled to damages or the recovery of any moneys paid thereon. And it is further expressly agreed, in case any suit or proceeding shall be commenced for the recovery of any claim under this Certificate after the lapse of one year from the death of said member, or when the claim is otherwise illegal or fraudulent, that the person or persons so commencing suit or proceeding, on failure to obtain judgment therefor, shall pay to said Company the sum of two hundred dollars, as its reasonable attorney fees and damages, which sum shall be taxed as costs in the case, and shall be collected as other costs in the suit are collected.
    
      “9. Debts and Liens. — It is further agreed that this Certificate shall be charged with any and all amounts that may be owing from the member or beneficiary herein, or their assigns, to said Company at the time of the payment of this Certificate, and the Company reserves a lien thereon to secure the payment of any such indebtedness, and the-right to deduct and withhold the amount of any such account or indebtedness in payment thereof. And that in case any Country, State, or Municipality in which the member or his legal representative may reside shall levy a tax to be paid by said Company on account of any moneys collected hereon, said member agrees to pay the amount of such tax to said Company in addition to the payments herein-before named, as part of the payments needed to hold this Certificate in force, upon notice and demand by said Company, either in connection with the payments of assessments and annual dues ox-otherwise, as said Company may from time to time elect.
    “10. Assignments. — This Certificate shall not be assigned or transferred, unless notice and copy of this assignment be given to said Company, nor, unless a claim hereunder,- made by an assignee, be subject to proof of interest.
    “11. Powers of Agents. — Agents of the Company can not alter or waive any of the conditions of this Certificate, nor issue permits of any kind, and they are not authorized to make axiy indorse-ments hereon, nor to receive money or assessments, dues, or Safety Fund deposits maturing and payable after the issue of this Certificate.
    “In Witness whereof, the said Hartford Life and Annuity Insurance Company have, by their President and Secretary, signed and delivered this contract, at Hartford, Conn., this 2nd day of May, one thousand eight hundred and eighty-three.
    “(Signed) T. R. Foster,
    
      “President.
    
    ‘[Seal]
    “(Signed) W. A. Cowles, Ass. Secretary.
    
    “(Agents of the Company are not authorized to make any indorsements on this certificate.)
    “Trustee’s Contract.
    “This agreement, made and entered into this thirty-first day of December, A. D. 1879, by and betweeii the Hartford Life and Annuity Ihsurance Company, a corporation organized under the laws of the State of Connecticut, and located in the City of Hartford in said State, party of the first part; and the Security Company, a like corporation also located at said Hartford, party of the second part; witnesseth:
    “Whereas, The party of the first part purposes to issue to persons contracting therefor, Certificates of membership in a special department of its business to be known as the Safety Fund Department, and, in .consideration of the sum of ten dollars to be received on each one thousand dollars of the amount of each and every such Certificate for the purpose of creating a Safety Fund, to insert therein sundry agreements with such persons in the following words; to-wit:
    “ ‘That said Company will deposit said sum of ten dollars, when received, with the Trustee, named in a contract made with it (of which a copy is printed hereon), as a Safety Fund in trust for the uses and purposes expressed in said contract; and shall at the expiration of five years from July 1, 1879, if said Safety Fund shall then amount to three hundred thousand dollars, or whenever thereafter said sum shall be attained, make a semi-annual distribution of the net interest received therefrom by it, pro rata among all the holders of Certificates in force in said department at such times, who shall have contributed five years prior to the date of any such division their stipulated proportion of said Fund, by applying the same to the payment of their future dues and assessments; and that, whenever said Fund shall amount to ‘one million dollars all subsequent receipts therefor shall be distributed by the said Company in like manner as the interest.
    “ ‘Said Company further agrees that if at any time, after said Fund shall have amounted to three hundred thousand dollars, or after five years from January 1, 1880, if that amount shall not have been attained before that date, it shall fail by reason of insufficient membership, or, shall neglect if and legally due, to pay the maximum indemnity provided for by the terms of any Certificates issued in said department, and such Certificate shall be pré-sented for payment to said Trustee by the legal holder thereof, accompanied by satisfactory evidence, as hereinafter provided, of its failure to pay, after demand upon it within the time herein stipulated for limitation of action, then it shall be the duty of said Trustee to at once convert said Safety Fund into money and distribute the same (less the reasonable charges and expenses for the management and control of said Fund) among all the holders of Certificates then in force in said department or their legal representatives, in the proportion which the amount of each of their Certificates shall bear to the amount of the whole number of such Certificates in force; and that in suGh'event it shall file with said Trustee a correct list, under oath, of the names, residences and amounts of the Certificates of all members entitled to participate in such division. The evidence referred to above to be either certification by said Insurance Company’s President or Secretary that a claim is justly and legally due and that payment thereof has been demanded and refused, or the duly attested copy of a final judgment obtained thereupon in any court of competent jurisdiction, satisfaction of which has been neglected or refused for a period of sixty days from this date.
    “ ‘And said Company further agrees that so long as any Certificate of membership in its Safety Fund Department shall remain in force, said Fund shall be in no wise chargeable or liable for any use or purpose except as above mentioned.’
    “Now, Therefore, the party of the first part, in consideration of the covenants and agreements hereinafter contained on the part of the party of the second part and in accordance with its agreement with its Certificate holders, as hereinbefore recited, does hereby appoint the party of the second part Trustee as aforesaid and covenants and agrees with it and its successors in said trust to deposit with said Trustee, as soon as received, the sum of ten dollars on each thousand dollars of the amount of each and every Certificate of membership issued by it in the aforesaid department until said Fund shall amount to one million dollars, to be by said Trustee held in' trust and accumulated as hereinafter agreed, and the income thereof, less the reasonable compensation and expense of said trust, to be paid over to the party of the first part, as hereinafter provided, to be used by the party of the first part in accordance with the hereinbefore recited agreements: And when said Trustee shall pay the income, as above, to the party of the first part, or, shall make any other payments from said Fund, as required by the terms' hereof, the liability of said Trustee on the amount so paid shall cease; it being understood and agreed that said Fund belongs to the party of the first part, .subject to the expressed trusts herein provided.
    “And the party'of the second part, for itself and its successors, in consideration of such deposits and of a reasonable compensation for its services, and the necessary expenses of managing said trust, covenants and agrees with the party of the first part and its successors and with each of the holders of the aforesaid Certificates that it will receive, hold, manage and dispose of all said deposits made with it by said Insurance Company, principal and income, in accordance with the uses and purposes specified in the hereinbefore recited agreements of the party of the first part with its Certificate holders; and shall at all reasonable times exhibit to the party of the first part all the securities and investments composing said Trust Fund; and shall render true statements of the account of said funds and the income thereof to any person entitled to request the same by reason of an interest therein; said party of the first part hereby agreeing to keep the party of the second part correctly informed of the names, addresses, numbers and amounts of'Certificates of all persons thus entitled.
    “That, as often as the sum composing such Fund shall be in amount sufficient to purchase one thousand dollars, par value, of United States Bonds, said Trustee shall make investments of such funds therein and register the same in its name as Trustee of the Safety Fund of the said Insurance Company, and, provided no default by the party of the first part as hereinbefore recited shall occur, shall accumulate said Fund and the income thereof (less the reasonable compensation and expenses), for five years from July 1, 1879, or until such time thereafter as such Fund shall amount to three hundred thousand dollars, par value, of the securities purchased for said Fund, when- the party of the second part will pay over to the party of the first part, semi-annually thereafter, all the further income from said Fund (less the accruing and unpaid compensation and expenses), to be by the party of the first part used for the purposes mentioned in the hereinbefore recited agreements: And, unless such default shall occur, will thereafter add to the principal of said Fund the deposits thereafter received from the party of the first part, exclusive of the income therefrom, until the whole Fund shall amount in such securities at their par value, to one million dollars: And-in the event of the failure or neglect mentioned in the hereinbefore recited agreements, will convert said Fund into money and distribute the same in accordance with the hereinbefore recited agreements, as soon as can reasonably be done after the necessary information of the proper persons and their shares shall have been obtained: Said party of the first part hereby agreeing to put the party of the second part in possession of the information required for the making of a proper distribution thereof as agreed with its Certificate holders.
    “All payments required hereby to be made to the party of the first part to cease upon the aforesaid failure or neglect of the party of the first part; and all payments required herein to be made to the Certificate holders by the party of the second part to be made at the office of said Trustee or of the successor in said trust.
    “The necessary expenses connected with the management of said Fund shall be limited to the ordinary commissions for purchasing or selling and transfer or' transmission of the hereinbefore mentioned securities, together with the cost of the stationery and postage used in replying to requests for information of the condition of said Fund and the actual cost of any judicial action needed to determine the legal status of said Fund: All other expenses to be included in and covered by such reasonable charge as shall be made for the compensation of the trusteeship, to be determined by the amount of time and labor involved in the execution thereof.
    “It is hereby mutually understood and agreed by both parties hereto that all the hereinbefore recited agreements of the party of the first part with the Certificate holders shall constitute the uses and purposes of the trust expressed herein. And it is hereby further understood and agreed that at such time as it shall be shown that all Certificates of membership issued by the party of the first part in its Safety Fund Department, have been legally settled and surrendered to it, or properly canceled in accordance with their terms, it shall be held and considered that the uses and purposes of said trust have been fully accomplished by said Insurance Company, and the balance of said Fund, if any, shall be paid over to the party of the first part.
    “And it is further understood and agreed that if said party of the second part shall, for any cause, fail to perform its duties as such Trustee as herein-before specified, or if, by reason of financial embarrassment of the party of the second part, or other cause, it shall be deemed expedient to remove said trust from its hands, then a new Trustee may be appointed, by the mutual nomination of said Insurance Company, and the then Insurance Commissioner of the State of Connecticut, to succeed to said trust, with all the duties and obligations herein imposed upon said original Trustee, and said party of the' second part shall surrender said Fund to such successor.
    
      “In Witness Whereof, the party of the first part has affixed hereunto the corporate seal of said Insurance Company and caused these presents to be signed by its President and Secretary.
    “And the party of the second part has hereto affixed its corporate seal and its President and Treasurer have hereunto set their hands.
    “Done in duplicate at Hartford in the State of Connecticut the day and year first above written.
    “Hartford Life and Annuity Ins. Co.,
    “By E. H. Crosby, President, and “[Seal.] “Stephen Ball, Secretary.
    
    “Security Company,
    “By Robert E. Day, President, and “[Seal.] / “William L. Matson, Treasurer.
    
    “Table of Graduated Assessment Rates for Death Losses for Every $1000, of a Total Indemnity of $1,000,000.
    Age Rate Age Rate Age Rate
    15 to 21 $0.65 35 $0.97 48 $1.35
    . 22 .67 36 1.00 49 1.40
    23 .69 37 L03 • 50 1.47
    24 .71 38 1.06 51 1.54
    25 .73 39 1.09 52 1.63
    26 .75 40 1.12 53 1.72
    27 .77 41 1.14 54. 1.81
    28 .79 42 1.16 55 1.92
    29 .81 43 1.18 56 2.03
    30 .83 44 1.20 57 2.15
    31 .85 45 1.22 58 2.32
    32 .88 46 1.25 59 2.50
    33 .91 47 1.30 60 • 2.68
    34 .94
    
      “These rates decrease in proportion as the total indemnity in force increases above one million dollars in amount, and are calculated so as to cover the usual expense for collecting.
    “Received of The Hartford Life and Annuity Insurance Company, of Hartford, Conn.,........... in full for all claims under this Certificate, No..... on the life of............, deceased.
    “................t, Beneficiary.
    “................., Beneficiary.
    “Witness......................
    [back of policy]
    “This Company has no agents authorized to receive money on Assessments, Dues, or Safety Fund.
    ■ “No. 34501.
    “Safety Fund Department.
    “Certificate of Membership.
    “Benefit not to exceed $1000.
    “Issued by The
    “Hartford Life and Annuity Insurance Co.
    “Hartford, Conn.
    “Name, Alonzo J. Douds.
    “Agent,......................
    “Read carefully all the conditions of this certificate.
    “No person should be a party to a contract without knowing all its conditions. ,
    
      “After an Agent has delivered this Certificate, and collected the Admission Fee, no other payment connected with the indemnity under this Certificate must be made to the agent without the production of a receipt signed by the Company’s .Secretary.
    “Always give Number of this Certificate in writing
    to
    “Home Office.
    “E. J. Thomas, Gen’l Agent.
    ' “Know All Men by These Presents, That the undersigned beneficiar.... named in the within Certificate, issued to..............in consideration of .................have sold, assigned and conveyed to............of County of............State of ............and to h. . heirs and assigns forever, all................right, title, and interest in the within Certificate of Membership, subject to the terms and conditions thereof.
    “I hereby constitute the said assignee or assignees its attorney, in my name, but to h.... own use, to take all legal measures which may be proper to keep in force said Certificate and finally collect all amounts due and to become due thereunder, with power of substitution.
    “Witness my hand and seal this........day of ............18....
    “.....................(Seal.)
    “If more than one beneficiary, they can sign below.”
    
      The petition in the common pleas court alleged that in 1898 the plaintiff reached the age of sixty years and that thereafter he was compelled to pay assessments in excess of the rate of $2.68, in violation of his contract of insurance. He therefore prayed as hereinbefore stated.
    To this petition, after demurrer and the overruling of the demurrer, the defendant answered, saving the question of jurisdiction, averring that it was conducting a department of life insurance upon the mutual or assessment plan, and that the policy of insurance in question was issued under such plan, and averring that instead of issuing a separate call upon each death claim defendant had .adopted the plan of quarterly assessments covering a number of death claims, averring that more than seventy assessments had been levied against the plaintiff, since he reached the age of sixty, and averring that the policy provides that “The rates decrease in proportion as the total indemnity in force increases above one million dollars;” defendant in its answer further avers that the assessment rate provided for in the certificate is the rate of assessment at each age therein stated to be levied for each individual loss of $1,000 upon the basis of one million dollars of outstanding insurance, and that -if the total insurance in force at the time of the levy of such assessment exceeds the sum of one million dollars the rate of assessment is to be proportionately decreased, and that where there is more than one death loss of $1,000 to be assessed for at the time of the levy of such assessment the rate and amount of such assessment is accordingly increased by the number per thousand dollars of such death losses. Defendant further avers that at the time of each of the assessments complained of in the petition the insurance in force was largely in excess of one million dollars and varied in amounts at the time of each assessment ; that at each assessment there was in excess of one death loss of $1,000 to be assessed for, and that the number of deaths so to be assessed for at the time of such assessment varied; that an inquiry as to the proper rate of assessment involved and required the ascertainment of the total amount of insurance or indemnity in force at the time each assessment was levied, as well as the number of deaths for which each assessment was levied; that such an accounting would require a complete and exhaustive visitation of the affairs of the defendant at its home office in Hartford, Connecticut, over a period cover - ing some eighteen years, and would be an interfei ■ 'ence with the internal management of defendant; that the payment of the assessments in excess of a rate of $2.68 by plaintiff were voluntary payments on the part of plaintiff; and that a large portion of the alleged causes of action set forth in the petition did not accrue within the six years next before the commencement of the action and are therefore barred by the statute of limitations.
    A reply was filed. The questions for the trial court were the jurisdiction, the interpretation of the contract of insurance, the amount of assessments paid in excess of the table of rates contained in the contract, the voluntariness of the payments and the application of the statutes of limitations,
    
      Upon motion the cause was referred to Honorable George B. Okey, to take an accounting and make report to the trial court.
    Upon such ah accounting the referee found for the plaintiff in the sum of $1,857.15, and the court of common pleas upon such report rendered judgment against The Hartford Life Insurance Company for the sum of $1,857.15, with interest from the first day of September, 1919, and for costs, which judgment was affirmed by the court of appeals.
    
      Messrs. Jones, Hocker, Sullivan & Angert and Messrs. Arnold & Game, for plaintiff in error.
    
      Mr. Smith W. Bennett and Mr. Hugh M. Bennett, for defendant in error.
   Robinson, J.

The plaintiff in error seeks a reversal of the judgment of the court of appeals and the court of common pleas upon three grounds:

1. That exclusive jurisdiction over the subject-matter of these actions lies with the Connecticut courts, and the exercise of jurisdiction by the Ohio courts violates the rights of plaintiff in error under the Fourteenth Amendment to the Constitution of the United States.

2. That' the defendant in error voluntarily paid his assessments over a long period of years without any duress or fraud intervening, and after notice of the right claimed by plaintiff in error, and cannot recover payments so voluntarily made.

3. That the claims of defendant in error are barred by the six-year limitation, under Section 11222, General Code, or by the ten-year limitation, under Section 11227, General Code.

These grounds of reversal will be considered in the order above. ' <

The jurisdiction exercised by the trial court will be considered in the light of the relief granted rather than in the light of the relief sought in the petition, and this court will confine itself to the question whether the jurisdiction of the court extends to the limit it was exercised.

The journal entry in the court of common pleas recites: “It is, therefore, considered and decreed by the court that the plaintiff, Alonzo J. Douds, recover of the defendant, The Hartford Life Insurance Company, the sum of $1857.15, together with interest thereon at the rate of six per cent, from the first day of September, 1919, and his costs herein expended, including a fee of $250 hereby allowed to the said referee, and in all taxed at $......” That court rendered no other judgment, order or decree in the cause.

It will not be possible within the reasonable limits of this opinion to discuss all the cases cited. We will, therefore, confine this discussion to those cases exactly in point and relied upon by counsel.

The plaintiff in error relies largely upon the case of Sauerbrunn, Jr., v. Hartford Life Ins. Co., 220 N. Y., 363, decided by the court of last resort of the state of New York, and upon the case of State, ex rel. Hartford Life Ins. Co., v. Shain, Judge, decided by the supreme court of the state of Missouri and reported in volume 245, Missouri reports, at page 78, and the authorities in those cases cited.

In the Sauerbrunn case the facts covered and relief prayed for were not substantially different from the facts covered and relief prayed for in this case, and the action was disposed of by the cburt on a demurrer to the petition, the court there holding that “An action against a foreign life insurance company brought by a member of the company holding one of its certificates to restrain it from' making an assessment against him of more than a certain amount named in his certificate and to compel it to account for moneys theretofore paid by him in excess of that amount relates to the internal affairs of the company, which are conducted at its home office, and its method of assessment against members for the various purposes for which they are liable is governed by local laws and regulations and should be adjusted in an action brought in the home state of the company.” In the discussion of the case the court assumed that an account could not be stated between Sauerbrunn and the insurance company without an exhaustive visitation and examination of the books of the company in a foreign state; and the authorities there cited, in so far as we have examined them, were based upon that theory, and upon the further theory that the court would be unable to enforce any order which it might make in the premises and therefore ought not to do a vain thing.

In the Shain case the action was one in prohibition against the trial court prohibiting it from exercising jurisdiction to enjoin a foreign insurance corporation from assessing one of its policy-holders a rate of assessment in excess of the stipulated rate, and for an accounting of such foreign corporation’s business affairs; and the court there, too, assumed that an accounting would involve a visitation and examination of the books of the insurance company at its home office in a foreign state. In each case the jurisdiction of the court to render a money judgment was considered in connection with the injunc-tive relief sought.

If the developments of the hearing before the referee in the case at bar did not refute the assumption that a determination of the issues in this case required an exhaustive visitation and examination of the books of the company, and if the judgment in this case operated to regulate the discretion and internal management of the affairs of the company, we would feel constrained to follow the reasoning and conclusion of the courts in those cases and the authorities there cited. But in the case at bar the referee was able to and did make an accounting between the plaintiff in error and the defendant in error upon the contract of insurance and the assessment calls issued to the defendant in error by the plaintiff in error, and upon the printed ratio for each such call and the rule for determining such ratio issued by the secretary of the plaintiff in error and supplied by a former general agent of the company; and but for the fact that the defendant in error had not preserved all such assessment calls, no other or further data would have been required by the referee in making the computation of the account. The defendant in error, however, having lost or destroyed a portion of the assessment calls, was obliged, as to a considerable number thereof, to supply other proof, which was done by introducing in evidence parts of the public report of the insurance commissioner of the state of Connecticut showing the data, from which together with the assessment calls it became a mere matter of mathematical calculation, and the trial court, treating the action as one for an accounting and the recovery of money wrongfully obtained under color of the contract, made an accounting and rendered judgment against the plaintiff in error for the amount so found to have -been demanded and paid in excess of the amount authorized by the contract. While it is true that in such computation the trial court was obliged to assume the correctness of the statements of the plaintiff in error as to the number of death claims, and the amount of insurance in force, and to make no accounting as to the earnings of the million-dollar safety fund, except as those earnings may or may not have been taken into consideration by the plaintiff in error in arriving at the ratio by it fixed, the defendant in error is not complaining of the inadequacy of the relief, and we see no prejudice therein against the plaintiff in error, for it may be assumed, in the absence of a showing to the contrary, that the plaintiff in error did not understate the number of death claims or overstate the amount of insurance in force, nor overstate the earnings of the million-dollar fund, and the fact, if it be a fact, that the relief granted to the defendant in error was not full and complete, is no ground for disturbing the judgment upon the complaint of the plaintiff in error.

To adopt the contention of the plaintiff in error that the enforcement of the terms of this contract between this defendant in error and this plaintiff in error in respect to the table or rates per thousand therein provided would affect thousands of other policy-holders distributed over many states, and would be an interference with the internal management of the affairs of the corporation, in that it would require the plaintiff in error to increase the assessment upon others of its policy-holders to meet its death claims, would amount to declaring that the courts of this state would not have jurisdiction to enforce payment upon a death claim, for necessarily a judgment in favor of the validity of such claim would result in an increase of the assessment upon its other policy-holders, within the limitations of their contract, by such proportion as the judgment would bear to the whole sum to be raised by such assessment. If the courts of the state of the domicile of the insured have no jurisdiction to determine the obligation of the insured as to the payment of assessments levied under the contract, they would have no jurisdiction to determine the obligation of the insurer as to the payment of death benefits thereunder.

If we adopt the theory of the plaintiff in error that under the contract, notwithstanding the table of rates expressly made a part thereof, it may make any assessment in excess of such rate necessary to pay the death claims accruing under the safety fund department of the company, it will logically follow that the rate may be increased as the number of outstanding policies decreases until the point is reached where there is but one'assessable policy outstanding, which may be assessed the full amount of the death claims then existing, and when that policy-holder dies there shall be paid from the million-dollar safety fund the amount of such policy less certain specified items of expense, and the balance of the safety fund, amounting to approximately $999,000, will become the absolute property of the plaintiff in error, and while the disposition of the safety fund is not before this court at this time, and probably never can be before the courts of this state, yet in arriving at a construction of the contract within the jurisdiction of this court, the effect of any proposed construction concededly without its jurisdiction is a proper subject for consideration in so far as it has a bearing upon the contract within its jurisdiction.

To the argument that an affirmance of the judgment of the court below and the application of the construction of the contract there given to every policy-holder will result in the company being unable to make payment of the death claims as they accrue, we answer that we are concerned with and are here determining the rights of the parties hereto under the contract they entered into, and beyond that the judgment below does not go.

In holding that the plaintiff in error in making assessments is bound by the table of rates stipulated in the policy, and cannot above the age of sixty years levy an assessment at a rate in excess of $2.68 under the contract in question, we are following the case of Dresser v. Hartford Life Insurance Co., 80 Conn., 681, decided by the supreme court of the state of the domicile of the plaintiff in error.

The statutes of Ohio require any foreign insurance company, association or partnership desiring to transact business by an agent in this state to file with the superintendent of insurance a written instrument duly signed authorizing any of its agents in Ohio to acknowledge service of process therein for and in behalf of the company, consenting that service of process, mesne or final, upon any agent, shall be as valid as if served upon the company; consenting that suit may be brought against it in the county where the application for insurance was taken; if suit be brought against it after it ceases to do business in this state, and there is no agent of the company in the county in which it is brought upon whom service of process can be made, that service may be had by the sheriff sending a copy by mail. If it was not intended by the legislature to authorize suits upon the contracts of foreign corporations made with citizens of the state of Ohio, and if it was not contemplated by the plaintiff in error in accepting the condition imposed by such statute, and in filing its consent to such service, to bestow upon the courts of Ohio jurisdiction to enforce for the citizens of Ohio the terms of its contracts of insurance made with Ohio citizens and to render a judgment for money due Upon such contract, or wrongfully obtained under color of such contract, then the provisions of the statute in that respect operate as an aid to imposition upon the citizens of Ohio.

We are not disposed to attempt to extend the jurisdiction of the courts of the state beyond its border, but when its jurisdiction may be exercised within the borders of the state in enforcing the contracts of its citizens with foreign corporations, based upon the written contract and written data furnished, pursuant to sudi contract, we are of opinion that to deily such jurisdiction would be in violation of the provision of the Ohio constitution that “All courts shall be open and every person, for an injury done him in his land, goods, person, or reputation, shall have remedy by due course of law, and shall have justice administered without denial or delay.” And it seems especially important in this case that the courts of Ohio should exercise such jurisdiction, in view of the fact that the supreme court of the state of Connecticut, the domicile of the plaintiff in error, in the case of Dresser v. Hartford Life Ins. Co., supra, in construing a contract of insurance between the plaintiff in error here and one Dresser, which contract in all essentials was like unto the contract here under consideration, held: “That the company could not increase the amount of the mortality calls above the amounts stated in the application for insurance made a part of the certificate,” notwithstanding which decision by the highest court of the state of its domicile, rendered in 1908, prior to the levying of many of the assessments here in controversy, the plaintiff in error, in disregard of such decision, has placed upon the contract an interpretation which permits it to do the very thing that court declared it could not do. Since the plaintiff in error has so lightly regarded the judgment of the courts of its own state in this respect, its contention that it ought not to respond to the process of a court other than the courts of Connecticut does not appeal to the conscience of this court, and if adopted will be adopted because no other course can be justified under the powers conferred upon this court by the Constitution of Ohio, or because the exercise of such power will violate some provision of the Federal Constitution.

In the case of Frick v. Hartford Life Ins. Co., decided by the supreme court of Iowa, 179 Iowa, 149, in an action like unto the one at bar, and upon a similar policy, that court held: “A court of equity of this state, on proper service or appearance, has, in an action by an individual policy holder, jurisdiction, not only of a foreign non-mutual life insurance company, but jurisdiction: (a) to enjoin assessments on a policy of insurance in violation of the contract terms thereof; (b) to determine the amount of assessments illegally exacted (whether such determination be called an ‘accounting’ or not) ; and (c) to render personal judgment for the amount of such illegal exaction, provided such determination involves (1) no interference with the internal management of the affairs of the company, and (2) no interference zvith the discretionary powers of its officers. So held where the contract amount of an assessment involved no exercise of discretion on the part of the officers, but was determinable by mathematical calculation only.”

Upon the second proposition, that defendant in error voluntarily paid his assessments over a long period of years without protest, if we adopt the theory of the plaintiff in error that it was a mere conduit through which' the various members of the Safety Fund Department insured each other, and that its function and liability were limited to the taking care of the safety fund, keeping account of the number of policies in force and the number and amount of death claims, and the issuing of calls for assessments and the disbursing of those assessments, clearly every dollar it received upon such assessments authorized by the contract, less the sums specified for expenses, it received in trust, and .the excess payments, having been made upon an assessment call made under color of the contract, in the absence of a showing to the contrary, will be presumed to have been made by the insured with reference to the contract and not as voluntary contributions to either the insurance company or the death benefit fund; for the fact, must not be lost sight of that the ratio, and rule under which the ratio was determined, were not furnished to the defendant in error, but to' an agent of the company, and there is no showing that defendant in error had knowledge of either prior to-, and such knowledge being exclusively within the company, except as it promulgated it by circular or otherwise to its agents, no presumption obtains against the defendant in error with reference thereto. If then the payments were exacted under color of the provisions of the contract and without acquainting the defendant in error with the fact that they were in excess of the assessments in the contract provided, or without acquainting him with the data from which he could ascertain that they were so in excess, and the courts below so found, we can discover no reason for disturbing the finding, of the referee and the courts below that they were not voluntary payments.

Sums received, authorized by the contract, were received by the company as trustee for the payment of the proportion of death benefits owing by the defendant in error. ;

The sums received by the company in excess of the sums required by the contract having been exacted and received by it in violation of its duty, and under color of the trust created by the contract, equity will impress a trust upon such fund; and so long as the duties of the trustee under the contract, to apply such assessments to the payment of death benefits according to the table of rates included in the contract,, remain undischarged, the relation of trustee and cestui que trust continues, against which the statute of limitations will not begin to run until there is a' repudiation by the trustee of his obligation thereunder, or knowledge is brought to the insured that such sums have not been so applied. The trial court having found that the payments were made by the defendant in error without knowledge of the fact that they were in excess of the rate prescribed in the contract, it necessarily follows that the defendant in error could not have known that the trustee was in fact distributing such sums contrary to the provisions of the contract, and such distribution would not, therefore, amount to notice to him of the fact that the plaintiff in error had repudiated its obligation to distribute it according to the terms of the contract, and, until such notice were brought to the defendant in error, the trust would continue and subsist, and would be within the saving provision of Section 11236, General Code.

Judgment affirmed.

Johnson, Hough, Wanamaker and Matthias, JJ., concur.  