172 Ky. 18 | Ky. Ct. App. | 1916
Opinion of the Court by
Affirming,
The appellants, who were stockholders and one of whom was a policyholder in the appellee, the Central Life Insurance Company, instituted this action in the circuit court of Fayette county against the appellee,
It is contended for appellee, that under the statutes. ‘ relating to insurance, the right to maintain an action against an insurance company for. the appointment of a, receiver is exclusively a right of the Insurance Commissioner, and that neither a policyholder, a creditor nor a. stockholder is authorized to maintain such an action; while for the appellants it is contended, that the statute,, which authorizes the Commissioner to maintain such an action is only a cumulative remedy, and that it did not. divest the creditors and ‘Stockholders of an insurance.
It may be conceded, that, according to the common law, a policyholder or creditor of an insurance corporation, upon the ground of insolvency of the corporation, alone, and a stockholder, where the unlawful and fraudulent mismanagement of the corporation by its officers threatened it with insolvency, or it has become insolvent from such mismanagement, could maintain an action for the appointment of a receiver. Having this right at the common law, they would not be divested of it, except it be done by a legislative enactment. Having the right, they could proceed by the same remedy as any other creditor or stockholder of any other kind of a corporation could proceed, unless the legislature has forbidden them the use of that remedy and provided another. The well established' rule is, that where a right exists by the common law, and there is a remedy for a violation of that right by the common law, and the statute provides another remedy, the one provided by the statute is not exclusive of the common law remedy, unless the one created by the statute is expressly or by implication made exclusive by the statute. Wells v. Steele, 31 Ark. 219; People v. Craycroft, 2 Cal. 243; Washington, etc. v. State, 19 Md. 239; Bellant v. Brown, 78 Mich. 294; State v. Bettinger, 55 Mo. 596; McKay v. Woodle, 28 N. C. 252; Goodrich v. Milwaukee, 24 Wis. 422.
If the right is a new one created by statute, and a remedy for its violation is provided by the statute, then the remedy provided by the statute is exclusive of any other. Russell v. Muldraugh’s Hill C. & C. Turnpike Road Co., 13 Bush 307; Ky. River Navigation Co. v. Com., 13 Bush 435; Boberts v. Landecker, 9 Cal. 262; Butler v. State, 6 Ind. 165; Ryan v. Ray, 105 Ind. 101; Chandler v. Hanna, 73 Ala. 390; Cole v. Muscatine, 14 Iowa 296.
If a remedy for the violation of a right is given by statute, and it is not expressly declared to be exclusive, no implication will arise that it is intended to be exclusive, where it.is inadequate for the purpose, and in such cases the ordinary processes of the law may be resorted to. Johnston v. Louisville, 11 Bush 527; Fletcher v. State Capitol Bank, 37 N. H. 369; Murriam v. Moody, 25 Iowa 170.
When the language of the entire statute is taken under consideration, the facts of common knowledge, and the history of the times, at the time of its enactment, the evils to be remedied, and the objects to be promoted, the state of the laws at that time, and the results which would follow from different constructions may be looked to to assist in resolving any doubt as to its meaning. 36 Cyc. 1136, 1137, 1145.
At the time of the adoption of the present legislation, which relates to the organization and control of insurance corporations in this state, the business of organizing and conducting insurance companies was a fruitful field for adventurers, whose zeal and -ability to sell stock and policies in the companies, in many instances, far exceeded their zeal in the purpose to conduct the business along lines, which would insure a return to the stockholders or the beneficiary of the policy. The inevitable result was, that the enterprise apparently flourished for a short time and then it collapsed, and trusting stockholders and policyholders reaped nothing, except experience, while the promoter of the -enterprise betook himself to a climate that was more congenial, and another field which had not been theretofore worked in the same manner. Representatives of insolvent companies, both foreign - and domestic, and representatives of companies, whose officers and directors, under the forms of law, fraudu
“There is hereby established in connection with the office of Auditor of Public Accounts a department to be designated the Insurance Department, which shall be charged with the enforcement of the laws heretofore passed, or which may hereafter be passed relating to insurance. ’ ’
At the same session of the General Assembly, on May 22nd, 1893, a law was adopted on the subject of assessment or co-operative fire insurance, which, with its amendments, is now subdivision V., of Article IV., of Chapter 32, supra.
An act, which became a law on April 14th, 1892, relating to fidelity insurance, is now subdivision VI., of Article IV., of Chapter 32, supra.
Subdivision VII., of Article IV., Chapter 32, supra, was an act of the General Assembly, which became a law on March 19th, 1894, and relates to real estate title insurance.
Subdivisions I., IL, III., IV., and VIII., of Article IV., Chapter 32, supra, are substantially as adopted by the General Assembly on April 5th, 1893. Certain amendments have since been adopted to certain sections, but nothing has been adopted in the Way of amendments, which in any way effects the determination of the question in the instant case.
Article IV., of Chapter' 32, supra, contains one hundred and fifty separate sections, and many of the sections are composed of a number of subsections, and it is impossible within the limits of an opinion to advert to these separate sections or their provisions.
The act of April 5th, 1893, was very comprehensive in its scope, and was evidently intended to be a law by which all kinds of insurance companies should be organized, regulated and controlled, and the two acts above mentioned, which have been adopted since that date, relating to co-operative or assessment fire insurance and real estate title insurance contain provisions similar in their requirements, so far as relates to the administration of their provisions, to the act of April 5th, 1893.
By the provisions of Section 690, if the officers of an insurance company, other than a life insurance company, make a dividend other than from the surplus profits arising from its business, such dividend subjects the company to a forfeiture of its charter, which is to be enforced by a proceeding in the nature of a quo warranto, by the attorney for the Commonwealth, in any county where the company has an office or transacts business.
For the penalties denounced by the statute against the companies, their officers and agents, for violations of the law, it is provided by Section 754, that if the Commissioner be of the opinion that such penalties have been incurred, he shall report same to the Attorney General, whose duty it shall be, if he thinks proper, to institute prosecutions against the guilty ones therefor.
By Section 628 a majority of the stockholders in number or interest may by petition apply for a dissolution of an insurance corporation to any court having chancery jurisdiction, in the county where the corporation is located, and for reasonable cause, the court may decree
Section 745, provides that the Auditor may appoint an Insurance Commissioner, who shall hold his office until the expiration of the term of the Auditor. . The Commissioner may appoint a deputy, and with the consent of. the Auditor, such clerks as may be necessary to assist him in his duties, and shall execute a bond with sureties, to be approved by the Auditor, who are worth in the aggregate, the sum of twenty-five thousand dollars, conditioned for the faithful performance of his duties. In addition to the great number of duties required of him by the laws relating to insurance and the many powers vested in him, he is required by the provisions of Section 752, Ky. Statutes, and which is a part of the act of April 5th, 1893, as follows:
“As often as once in four years, he shall personally or by his deputy or chief clerk, or by some competent person appointed by him for the purpose, visit each domestic insurance company and thoroughly inspect and examine its affairs, especially as to its financial condition and ability to fulfil its obligations, and whether it has complied with the laws. He shall, also, make an examination of any such company whenever he deems it prudent to do so, or upon the request of five or more of the stockholders, creditors, policyholders or persons pecuniarily interested therein, who shall make, affidavit of their belief, with specifications for their reasons therefor, that such company is in an unsound condition....... For the purposes, aforesaid, the Commissioner, or. his deputy or person making examination shall have free access to all the books and papers of an insurance company that relate to its business and to the books and papers kept by any of its agents, and may summon and qualify a witness under oath, and examine the officers, directors, trustees and agents of any such company, and other persons in relation to its affiairs, transactions .and conditions......” A penalty of not exceeding one-thousand dollars or imprisonment not exceeding one year is denounced against any one who refuses to appear and testify or obstructs the Commissioner in the performance of his duties, and if the directors, officers or agents of a foreign insurance company refuse to appear*29 or testify when required, the Commissioner shall revoke the license of the company
Section 753 provides in part as follows: .
“If, upon examination, he is of the opinion that any domestic insurance company is insolvent, or has exceeded its powers, or has failed to comply with any provisions of law, or that its condition is such as to render its further proceedings hazardous to the public or to its policyholders, he shall revoke or suspend all licenses issued 'to it or agents, and cause notice thereof to be published in some newspaper of general circulation in the state; and it is hereby also made the duty of the Commissioner to immediately notify the general agents of the foreign or domestic company suspended of the suspension, and it shall be the duty of said agents to immediately notify persons insured by them of such suspension by the Commissioner, and for failure so to do upon the part of the Commissioner or agent, he shall be fined not less than fifty nor more than one hundred .dollars'for each offense; he shall, also,' apply to the judge of the Pranklin circuit court, or the judge of the circuit court where the company is located, to issue an injunction restraining it in whole or in part from further proceeding with its. business. Such judge may, in his discretion, issue the injunction forthwith, or upon notice and hearr ing thereon, and after á full hearing of the matter may dissolve or modify the injunction or make it perpetual; and may make all orders and decrees needful in the premises and may appoint ag’ents or receivers to take possession of the property and effects of the company, and to settle its affairs, subject to such rules and orders as the court may from time to time prescribe, according to the. course of proceedings in equity.....
When a suit for a receiver has been instituted by the Commissioner, and upon the final disposition of the case it appears, that there did not exist reasonable grounds for obtaining any injunction, which may have been granted in the action, then the Insurance Department must pay the costs of the proceedings. It will be observed that among the remedies provided for in the statute there, is none provided'by which a less number than one-half, in interest or numbers, of the stockholders ■can maintain a suit for a dissolution of an insurance corporation, and its consequent placing in the hands of á receiver. The remedy of placing the assets in the hands
The opinion in Com. v. Richardson, 94 S. W. 639, 28 R. 632, and Richardson v. People’s Life & Accident Insurance Co., 92 S. W. 284, 28 R. 919, are overruled, so far as they conflict with this opinion.
The judgment is therefore affirmed.