209 Ill. 42 | Ill. | 1904
delivered the opinion of the court:
The State’s attorney of Johnson county brought an action of debt, in the name of the People of the State of Illinois, in the circuit court of said county, against the Metropolitan Life Insurance Company and M. M. Maddox, to recover the statutory penalty for a violation of the act in force July 1, 1891, (Laws of 1891, p. 148,) prohibiting any life insurance company from making or permitting any discrimination between insurants of the same class and equal expectation of life. The declaration contained five counts, and charged that the defendant the Metropolitan Life Insurance Company was a life insurance company incorporated under the laws of the State of New York and doing business in this State; that the defendant M. M. Maddox was an agent of said company, and that the said defendants, in writing a life insurance policy on the life of Otis B. Harvick, made and permitted an unjust discrimination by paying and allowing to the insured a special rebate-of a premium in the sum of $8.41. Defendants appeared and filed a plea of nil débet. The cause was submitted to the court for trial without a jury, and it was proved at the trial that M. M. Maddox, of Mound City, Illinois, was an assistant superintendent of the insurance company; that P. A. Johnson was an agent of the company, under Maddox, at Vienna, Illinois; that Maddox and Johnson negotiated with Otis B. Harvick, of Vienna, for insurance; that Harvick agreed to take two policies, one on his own life and another on the life of his mother; that the policy on the life of the mother was not issued, nmd Harvick thereupon refused to take the one issued on his own life, and that after Maddox had left, Johnson arranged with Harvick to accept the policy and pay $10 premium, and the balance, $8.41, was rebated. . The premium was $18.41, of which the agent was to receive $11.05 and the insurance company $7.36. Johnson accounted to the company for $7.36-to which it was entitled. Agents of the insurance company were not authorized to allow auy rebate, and the rate book issued by the company prohibited rebates. At the conclusion of the evidence, leave was given the plaintiff to amend the declaration by striking out the name of M. M. Maddox and inserting the name of P. A. Johnson. The alleged rebate occurred more than two years prior to the amendment, and the insurance company again filed its plea of nil debet and a plea of the Statute of Limitations of two years. Plaintiff demurred to the plea of the Statute of Limitations, and the demurrer was sustained. The insurance company'then submitted propositions of law to the effect that if the rebate was allowed by an agent without the knowledge and consent of the company, and the company had not ratified the act, it would not be liable; that there could be no recovery for any rebate allowed by P. A. Johnson, and that there could be no recovery for any such rebate by P. A. Johnson more than two years prior to the amendment of the declaration. These propositions were refused by the court and exception was taken to the ruling. There was no appearance by the defendant Johnson, and the court not having acquired jurisdiction of him, the cause was continued as to him. The court found the insurance company guilty and entered judgment against it for $500 and costs. From this judgment the insurance company appealed to the Appellate Court for the Fourth District, where the judgment was affirmed, and the writ of error in this case was sued out to review the judgment of the Appellate Court.
It is first contended that the court erred in not holding to be the law the proposition that if the rebate was allowed by an agent without the knowledge and consent of the plaintiff in error, and it had not ratified the act, it would not be liable. The contrary of this proposition was decided in the cases of Franklin Life Ins. Co. v. People, 200 Ill. 594, and Same v. Same, id. 619. The suit, although civil in form, was brought for a penalty for a violation of public law, and was, in effect, a criminal prosecution. The general rule is as contended by counsel, that a principal is not liable criminally for an act of his agent committed without express or implied authority; but there have always been well recognized exceptions to the rule, such as violations of the revenue laws, the creation or maintenance of nuisances or the publication of libels. Well recognized exceptions arise under police regulations prohibiting acts hurtful to the comfort, welfare and safety of society, such as the adulteration of food and drink, the sale of intoxicating liquor in violation of law,(Noecker v. People, 91 Ill. 494,) or a failure to stop a train at a railroad crossing. (Indianapolis and St. Louis Railroad Co. v. People, 91 Ill. 452.) In such cases, to give immunity to the principal would be to undermine and practically destroy the protection afforded to the people in general by the laws. The nature of the insurance business and the interest of the public in it are such as to subject it to regulation under the police power, and the statute which prohibits discrimination in favor of individuals between insurants of the same class and with equal expectation of life is a valid exercise of that power. (22 Am. & Eng. Ency. of Law,—2d ed.—933.) A corporation can only act throug'h an agent, and the act of the agent within the scope of the business entrusted to him is the act of the principal. If there is a violation of the statute, the law wisely throws the responsibility'for the act upon the corporation, which has the best opportunity to prevent it, and it is liable whether it has authorized the act or not.
It is next argued that the court erred in sustaining the demurrer to the plea of the Statute of Limitations and refusing the proposition of law that there could be no recovery, under the amended declaration, for an offense more than two years prior to the amendment. The question whether Johnson could have pleaded the Statute of Limitations is not now involved, but if he could, the plea is a personal privilege and defense, which can be availed of only by the person for whose benefit the statute inures or such other person as stands in his place or stead. (Fish v. Farwell, 160 Ill. 236.) A mere change in a party to a suit does not, of itself, change the cause of action or ground of recovery, and unless the cause of action is a new one the amended declaration is not subject to the Statute of Limitations. (Thomas v. Fame Ins. Co. 108 Ill. 91.) So far as plaintiff in error is concerned, the suit was begun within the time allowed by the statute, and unless the amendment introduced a new cause of action the demurrer was properly sustained. The question whether a new cause of action was introduced or whether the identity of the original cause of action was preserved is to be determined, as a question of law, by an inspection of the original and amended declaration. The statute declares that the insurance company and agent shall be jointly and severally subject to the penalty, and the charge in the original and amended declaration was, that plaintiff in error and its agent, in writing a policy of insurance on the life of Otis E. Harvick on January 13, 1900, allowed to the said Harvick a rebate of $8.41: If the suit had merely been dismissed as to Maddox or the averment as to him or his agency bad been stricken out, the declaration would still have stated a good cause of action against plaintiff in error. The discontinuance as to Maddox and substitution of Johnson did.not make the cause of action a new or different one unless the name of the agent was a matter of essential description of the offense, and we do not think that was so. The name of the agent did not in any manner define, qualify or limit the cause of action or the offense. The amended declaration did not present a different cause of action, and the demurrer was properly sustained and the proposition of law refused.
After the amendment, the court, having no jurisdiction of Johnson, continued the cause as to him and rendered judgment against the plaintiff in error, and it is insisted that the judgment was erroneous on that account. The action was civil in form and was governed by the practice in civil.cases. Section 9 of the Practice act authorizes a plaintiff to proceed to judgment against a defendant on whom process is served and to have the cause continued as to a defendant not served.
The judgment of the Appellate Court is affirmed.
Judgment affirmed.
