Fikes v. State

39 So. 783 | Miss. | 1905

Truly, J.,

delivered the’ opinion of the court.

The contention of the aptpellant that, because the insurance company which he represented does not fall clearly within any of the well-defined classes of companies specifically mentioned and dealt with by Laws 1902, ch. 59, p. 62, therefore neither he nor his company falls within the purview of that statute, is untenable. The law referred to was a timely and wise effort by the legislature to protect the people of the state against imposition and fraud on the part of any insurance company, no matter what form the particular scheme might assume. The intent of that law was that all insurance companies, whether fire, marine, accident, or fraternal, or other kind, should be subjected to an examination by the insurance commissioner before they could legally write insurance in this state. It imposes certain restrictions on every insurance company desiring to do business in this state, and demands compliance with certain conditions and the payment of certain fees before it can receive a license from the proper authority. The statute also contemplates that no agent shall represent any character of insurance company unless the same has been lawfully permitted to do business in the state and such agent has himself received a certificate entitling him to solicit and write insurance. This beneficent legislation was found necessary in order to insure the people protection from the imposition and fraud of so-called insurance companies not organized in accordance with law, not financially responsible for losses in case such should occur, and being in truth simply traps for the unwary, operated mainly, if not solely, for the benefit of the officials and soliciting agents. The inhibition against the unlicensed transactions of insurance business was wisely couched in general terms, and that inhibition applies to all insurance companies, without regard to mere formal differences occurring in their routine of business or in the promised benefits. The intention of the legislature was not to incite or encourage the conniving to devise different kinds of insurance associations, simply varying in some particular from the generally recognized organizations, but was an attempt to absolutely prevent dishonest, fraudulent, or insolvent associations transacting business in this state. The terms of the statute expressly include “all corporations, associations, partnerships, or individuals engaged as'principals in the business of insurance.” Hence a permit and license is demanded of all insurance associations, without exception ; and such permit can only be obtained by complete compliance with all the provisions of the statute, one of the chief conditions being that the state insurance commissioner must be fully satisfied of the applying company’s “financial condition and ability to fulfill its obligations.” If not satisfied of this, or if any company fails to comply with any other statutory requirement, the insurance commissioner, in the exercise of his discretion, may refuse the permit and forbid the company to prosecute its business in this state. So, if authority be granted any company, the same may be by the commissioner revoked when in his opinion “its condition is unsound” or if it “shall violate or neglect to comply with any provision of-law obligatory to it.”

We also hold that the issuance of a permit by the insurance commissioner is a condition precedent to the exercise on the part of any agent of any of the powers of such agency, and such permit and license is the sole proof under the law of his authority to engage in insurance business in this state. The proof in this case is perfectly clear that neither appellant nor the company for which he was acting as agent was lawfully authorized to operate in the state of Mississippi. The uncontradicted testimony of the state insurance commissioner and the certified copy of the records of his office were competent evidence, and are conclusive on that point.. It is useless to enter upon any discussion of the exact character of the so-called insurance promised by the policy of the self-styled insurance company or to decide whether it properly falls -within the class of fraternal or life-insurance companies, or either. Whether fraternal or life, it was not permitted to operate in this state, and it was unlawful for appellant to solicit or write risks for it.

But we find ourselves unable to uphold the conviction in view of the defective affidavit on which this prosecution is based. The demurrer to that affidavit should have been sustained. By the statute under review there are numerous different acts which are condemned by distinct provisions and for which different and varying punishments are prescribed. The affidavit here considered affords the court no guide by which to determine positively what particular violation of the law was intended to be charged against the appellant; nor does it advise the defendant of the nature and cause of the accusation against him. The mere general averment that the defendant “did unlawfully assume to act as insurance agent” is not sufficient. Under such charge the defendant might be convicted of violating several different sections of the statute, by entirely different acts, and,, upon conviction, be subject to different and distinct punishments. The affidavit should go further and show the character-of insurance which the defendant is charged with writing or-soliciting, and set out in definite terms the nature and details of the unlawful act alleged to have been committed, thus advising both the court and the defendant'of the exact offense intended to be charged, so that the defendant may know the statute he is alleged to have violated and, if convicted, the court may know its power in inflicting punishment. Upon this ground alone we reverse the judgment in this case. Appellant will be held in a $500 bond to answer such further prosecution as may be instituted against him.

Reversed and remanded.