88 So. 895 | Miss. | 1921
Lead Opinion
delivered the opinion of the court.
. The appellant was one of the resident defendants, being an agent of some of the insurance companies in the suit of Aetna Insurance Co. v. Stokes V. Robertson, State Revenue Agent, 88 So. 883, this day decided, and was made a defendant for the purpose principally of subjecting moneys, debts and effects of the insurance companies for which it was agent to the demand of the state ,in that suit. The pleadings on the part of the revenue agent and the insurance companies are sufficiently set forth in the suit just decided, Aetna Insurance Co. v. Stokes V. Robertson, State Revenue Agent, and will be referred to here as to the pleading on the part of the revenue agent and of the insurance companies.
The appellant in. this case filed an original answer, in which he denied the principal allegations of the bill along the lines of the denial of the Aetna Insurance Company et al., setting forth the various contentions as set forth in substance by the nonresident defendants, and then answered further as follows:
“And now further answering, this defendant says that at the time of the service of process on him in this case that he was not indebted to any of said nonresident defendant companies, but defendant says that upon the day of the service upon him he Avas acting as local agent for the following named nonresident companies:
Alliance Ins. Co., Philadelphia, Pa............$467.97
Connecticut Fire Ins. Co., Hartford, Conn .... 211,27
Federal Ins. Co., New Jersey................' 564.33
Fireman’s Fund Ins. Co., San Francisco...... 619.26
New Zealand Ins. Co., New Zealand.......... 110.21
Niagara Fire Ins. Co., New York ............ 512.32
North British & Merc. Ins. Co., England...... 972.26
Phoenix Ins. Co., Hartford.................. 527.18
Boyal Ins. Co. (Ga. Fire Ins.), England....... 648.45
Star Ins. Co., America...................... 201.84
Westchester Fire Ins. “Co., New York........ 735.25
This answer was sworn to, and after the answer was filed the application for receivers was made, as stated in the opinion in the case of Aetna Insurance Co. v. Stokes V. Robertson, State Revenue Agent, 88 So. 883, this day decided, and receivers were appointed, which said receivers accepted the trust and qualified. An application was made by the receivers for an order requiring the resident agents of the insurance companies to turn over immediately the funds in their possession to the said receivers, and to remit to the said receivers moneys thereafter collected. Thereupon the appellant amended his answer so as to deny any indebtedness to the several companies, and in the amended answer denied the general allegations of the bill as in the original answer as to the allegations that there was a conspiracy or agreement, in violation of the antitrust laws, made and entered into by the insurance companies ; and also denied that the insurance companies had permitted the Mississippi Inspection and Advisory Rating-Bureau to manage or control or fixe the rates, substantially in the same form as the principal defendants had answered. Then the appellant set up in this /answer an allegation that on the 10th day of August, 1917, the United States,
It is further alleged in the amended answer that, if the averments of the hill are true, the defendants were engaged in the commission of a felony, and that under the terms of the statute the contract entered into between the agent and the insurance companies are void, and that the insurance companies cannot collect from the agent their effects, and that the state could not collect from the agents, because its right to collect from the agents is derived from the right of the insurance company to collect from the agents.
It is further alleged that it is in violation of the public policy to enforce the payment of such funds under such circumstances.
It is further averred that, if the allegations of the bill are true, the respondent would be discharged from its liability to pay; that there can exist no garnishable debt, be
The court passed an order directing the agents to turn over all moneys and effects in their possession belonging to the insurance companies, the principal defendants, and from this decree the appellant has appealed to settle the principles of the case.
“(1) The chancery court without jurisdiction to grant an attachment for a statutory penalty in this suit.
“(2) The light of action in the state revenue agent — not state of Mississippi — is prescribed by one year, and superseded by the federal exercise of power, under the Lever Act.
“(3) The original contract in violation of law and unenforceable: (a) Under express statute; (b) in virtue of settled judicial policy.
“(4) Damage having been done by an illegal act in virtue of an unlawful conspiracy, each member is severally liable therefor, and, the property destroyed belonging to appellant being in excess of the amount of his indebtedness, the same will be recouped.”
The first proposition has been decided in the case of Aetna Insurance Co. v. Stokes V. Robertson, State Revenue Agent, 88 So. 883, this day decided.
The second proposition, that the penalty is barred by the one-year statute so far as the right of the revenue agent to sue is concerned, and that this is superseded by the federal exercise of power under the Lever Act. The one-year statute relied on is section-3101. Code of 1906 (section 2465, Hemingway’s Code), reading as follows:
“All actions and suits for any penalty or forfeiture on any penal statute, brought by any person to whom the penalty or forfeiture is given, in whole or in part, shall be commenced within one year next after the offense was committed, and not after.”
We think this contention that the action for the penalty is barred by the one-year statute is not well taken, because in the case of Grenada Lumber Co. v. State, 98 Miss. 536, 54 So. 9, this court expressly held that a suit for penalties under the anti-trust statutes of the state is a civil action; that section 104 of the state Constitution provides that the-statute of limitations in civil cases shall not run against the state or any subdivision or municipal corporation. It
It is also said that the anti-trust statutes are criminal statutes, and are barred after two years under section 1414, Code of 1906 (section 1169, Hemingway’s Code), providing a' limitation of prosecution of criminal offenses. An act may be criminal and may also give right to civil action, and where a civil suit lies to enforce the collection of a penalty imposed, it is a civil action as decided in Grenada Lumber Co. v. State, supra. There are numerous statutes in this state, providing both civil and criminál penalties for doing or failing to do particular acts. When a civil suit is instituted in such case, it is a civil suit,, and limits for prosecuting crimes have no application.
The contention of the appellant is that the Lever Act of August 10,1907 (Federal Stats. Annotated, Supplement 1918, page 181; U. S. Comp. St. 1918, U. S. Comp. St. Ann. Supp. 1919, sections 3115 l-8e-3115 l-8kk, 3115 1-81-
However, if the act is a valid enactment, it would not destroy the Mississippi statute, because, confessedly, it does not undertake to take charge of the subject of insurance, and the rule is that, where the state Has jurisdiction of a subject and enacts laws thereon, such laws are not annulled by the exercise of the paramount jurisdiction of Congress, where Congress has jurisdiction paramount to the state on the same subject. The effect of the enactment of Congress is merely-to suspend the state law as to the subject taken over by Congress, and does' not displace the state law any further. See 7 C. J. p. 21, section 15,16, 18.
In reference to the third point, we think this contention is not maintainable for the reasons that the defendant does not plead that the insurance companies have violated the anti-trust laws, but, on the contrary, denies under oath, on information and belief, that allegation.
There has been no suit filed by the appellant against the insurance companies to recover damages to him, and if he has any right of action it is uncertain as to what company or in what amount, or whether it was ever intended to be asserted, sued for, and recovered.
It is also contended that if the funds in the hands of the agents are held by them as the funds of the insurance companies they are not subject to garnishment; that the effect of the statute is limited to an indebtedness, and that such funds are not debts from the agents to the insurance companies, but are funds held in trust for the insurance companies by the agents. The right against the insurance
We think what we have said demonstrates that there is no merit in the fourth proposition advanced. There is no sufficient pleading in the record to properly present a contention of this kind. The appellant asserts no demand against the insurance companies in this suit. He has not made his answer a cross-bill, nor has he shown any disposition in his pleadings to allege or sustain a contention that the insurance companies which he represents are guilty of violating tbe law in any respect, but, as stated before, he denies such allegation made by the complainant in the suit.
The judgment will be affirmed.
Affirmed.
Dissenting Opinion
dissent on the ground that the revenue agent had no right to bring this suit. See dissenting opinion in the campanion case of Aetna Insurance Co. v. Stokes V. Robertson, State Revenue Agent, No. 21871, 88 So. 883.