Cowan v. London Assurance Corp.

73 Miss. 321 | Miss. | 1895

Woods, J.,

delivered the opinion of the court.

This is an action by a foreign insurance company which has not complied with our statutes in any of the particulars prescribing the method to be pursued by such companies desiring to do business in this state, and which had not paid the privilege tax and procured the license required to carry on such business in this state, for premiums due on a policy of insurance issued to appellant.

The policy of our law is to protect our citizens against irresponsible companies — against insurance which does not insure — and, to that end, certain important acts are to be done in the manner and at the time prescribed, as preliminary to taking any risks or transacting any business of insurance in this state. Plainly the appellee has done none of these acts, and equally plainly this suit is an effort to use the courts of the state to coerce payment of premiums alleged to be due on a policy issued by the appellee without such compliance with our law. It is the transaction of insurance business to collect premiums, and a most important transaction to both the insurer and the insured. Surveys of property cannot be made in the state by companies failing to comply with our statutes, applications cannot be taken for insurance in the state, and losses cannot be adj usted in the state, for all these are acts done in the transaction of insurance business in the state. No agent of such foreign insurance company can come into the state and collect premiums on a policy issued even elsewhere by such company, for the prohibition is sweeping, inflexible and universal. That the courts of the state cannot be used for the compulsory collection of premiums on policies so issued is too plain for extended argument.

Booth da Anderson, for the appellee,

Filed the following suggestion of error:

No question of public policy was involved in the appellant’s applying for and procuring, in New York, the insurance in question. > The accepted definition of the term £ £ public policy ’ ’ does not admit of any other conclusion. 19 Am. & Eng. Enc. E., p. 565. It would seem to be more violative of public policy for the state to clothe its citizens with the right to go abroad, and make contracts for insurance on their property within our limits, and, then, when they are called on to pay the premiums which they were empowered to contract for, deny relief in our courts to the companies contracted with. The .effect of such a ruling will be that our citizens will be able to insure in those companies alone that have complied with our laws. The case of Rose v. Kimberly c& Gla/rle, Oo., 27 L. E. A., 556, is not applicable, in view of the peculiar character of our statute. The case of Seamans v. Temple Go., 28 L. E. A., 430, is unlike the one at bar. The parties representing the company, calling themselves ‘£ inspectors, ’ ’ went into the state of Michigan, examined risks, took applications, etc., and the court held, and correctly, that they were agents, and came within the condemnation of the statute.

In Moses v. State, 65 Miss., 56, it was held that an agent of a foreign company which had not complied with our laws so as to be entitled to do business here, could not come into the state, after the destruction by fire of the insured property, to examine into the loss, take proofs and determine the amount thereof. This question is perfectly covered by the case just cited and by the case of Lemonius v. Mayer, 71 Miss., 514. See Rose v. Kimberly & Clark Co., 27 L. R. A., 556, and Seamans v. Temple Co., 28 L. R. A., 430, cases almost identical, in their leading features, with the case in hand.

Reversed and remanded.

The case of Moses v. State, 65 Miss., 56, was not a case where one, on his own behalf, took out a policy in a foreign company. The only case approaching a construction of the statute is that of Sadler v. Insurance Oo., 60 Miss., 394. The act of March 9, 1892, fully recognized the validity of policies like the one in question.

Cooper, C. J.,

delivered the opinion of the court in response to the suggestion of error.

Counsel for the appellee do not give to the prohibition declared by § 1073 of the code of 1880 its full effect, and therefore are impressed with the conviction that our decision is erroneous. Grant the premise that the thing done was not forbidden by the statute, and it follows as a corollary that the action for the premium may be maintained; but if the thing done was in violation of the law, it is equally certain that, from the forbidden act, no right of action to be pursued in the courts of this state could arise. The statute declared that it shall not be lawful for any agent of any insurance company, incorporated by any other state than the State of Mississippi, directly or indirectly, to take risks or transact any business of insurance, in this state, without first procuring a certificate of authority from the auditor of public accounts,” etc. The plaintiff’s declaration, and all the evidence, shows that the property insured was in the city of Vicksburg, in this state. The declaration in truth avers that the policy was ‘ ‘ issued and delivered ’ ’ in said city, but as the evidence discloses that the contract was in fact made in the city of New York, and the pleadings might be amended to show that fact, we have dealt with the case as though the real allegations of the declaration corresponded with the proof.

We have held, and we think correctly, that a contract made in New York by a citizen of this state, with a foreign insurance company which has not complied with our laws, insuring property situated in this state, is a violation by such company of our statute, and, hence, that our courts are closed against such company’s seeking to enforce any right springing out of or resting on the contact; that the insurance company is in such case taking a risk and transacting business in this state.

The cases cited in our opinion are precisely in point. In Seamans v. Temple Co., the court, responding to the argument that, the contract was not made in the state, said: “If it be conceded that the contract was made in Wisconsin, and that the premiums and loss, if any, are payable there, it is as much in contravention of the policy of this state as though it had been made here. It cannot be supposed that the statutes were intended merely to prevent the act of making the contract in this state. The object is to protect the citizens of this state against irresponsible companies, and to prevent insurance by unauthorized companies upon property in this state.” In Rose v. Kimberly & Clark Co., the court said: ‘ ‘ The evil to be corrected is not the writing of a policy by an unlicensed company in this state, but the writing of a policy at all. ’ ’ The whole question, however, was definitely settled in Moses v. State, 68 Miss., 56. In that case a contract of insurance had been made in the city of New Orleans, La., by a citizen of Georgia, with a company organized under the laws of Louisiana, but insuring property situated in this state. The property was destroyed by fire, and an adjuster of the company came into the state to examine into the loss. He was indicted and convicted for acting . as an agent of a foreign company doing business in this state without having complied with our laws, and that conviction was affirmed by this court and afterwards by the supreme court of the United States.

Moses was indicted under sections of the code which declared what acts should fix the character of agent for insurance companies on the actor, and making it a misdemeanor to so act for a foreign insurance company which had not complied with our •laws. Among other acts creating such agency, it was, inter alia, declared that any person £ £ who solicits insurance, . . or who shall receive or deliver a policy of insurance of any such company, or who shall examine or inspect any risk, or receive, collect or transmit any premiums of insurance . . . ’ other than for himself, or who shall examine into or adjust, or aid in adjusting, any loss for or on behalf of any such insurance company, . . . shall be held to be the agent of the company for which the act is done. ’ ’

Moses was indicted’ and convicted for coming into this state to adjust a loss arising under a policy issued under a contract of insurance, made in another state, on property situated in this state. Now, by the same statute, it is as much a misdemeanor to ££ collect and transmit a premium ” as to adjust a loss. It would be a strange condition of things if the courts of this state should be open to enforce against Cowen the payment of a premium which no person could lawfully have received from him and transmitted to the company. What would be done with the money if a judgment should be rendered requiring its payment ? The zealous and estimable counsel who represent the appellee could not accept and transmit it, for it is sued for as a premium, would be paid as a premium and transmitted as a premium collected on a contract prohibited by law, and the receipt and transmission of premiums on which is, by law, made a misdemeanor. The act of March 9, 1882 (Acts, p. 166), did not operate as a repeal of the code provisions. By the first section of that act, authority was given to tbe municipality of Vicksburg, extended also by the fifth section to other municipalities having organized fire departments, to levy and collect a privilege tax upon each fire insurance company transacting business in said city. By the third section it was provided that persons having insurance, on property in the city, in companies not authorized to do business in the state, should pay to the city one-fourth of one per cent, of the amount insured. This was levied upon the policy holders for the manifest reason that such foreign companies could not be directly reached, and, hence, the policy holders, having the benefit of the security afforded by the fire department, were themselves taxed. But there is in the act no suggestion of a purpose t'o mitigate the consequences declared by the code against foreign companies which had not complied with our laws. We are entirely satisfied with the judgment we have heretofore rendered, and a

Suggestion of error overruled.