285 N.W. 91 | Neb. | 1939
Plaintiff brings this action to recover damages, alleging in its amended petition a conspiracy, on the part of the defendants, to drive it out of business, in violation of the provisions of article 8, chapter 59, Compiled Statutes of Nebraska for 1929, entitled "Unlawful Restraint of Trade." Defendants demurred generally to the amended petition for the reason that it did not state sufficient facts to constitute a cause of action. The demurrer was sustained by the trial court, holding, in effect, that the plaintiff, as a corporation, was prohibited from acting as an agent for insurance companies, and, therefore, any damage to its business could not be recovered, since that business, itself, *80 was in violation of law. Plaintiff elected not to plead further, and its petition was thereupon dismissed. Plaintiff appeals to this court, assigning as error the sustaining of the demurrer and dismissing of plaintiff's petition.
The pertinent part of the provisions of article 8, ch. 59, Comp. St. 1929, applicable to plaintiff's case, may be stated in substance as follows: Section
Section
The plaintiff in its reply brief states that the validity of the Junkin act, the state act in restraint of trade, cannot be presented to this court at this time, because the matter was not argued at the time the demurrer was argued. We are not favored with the motion to strike or the ruling thereon, the same not appearing in the transcript. However, the provisions of the act are sufficient to provide a cause of action for the plaintiff, if the plaintiff, as a corporation, may bring such cause of action. *81
We next turn our attention to the plaintiff's amended petition, the contention of appellees (defendants), and an interpretation of the statutory provisions involved under the insurance code of this state.
The demurrer of the defendants admits the truth of the allegations of plaintiff's amended petition well pleaded. Therefore, an examination thereof becomes necessary to determine whether or not it states a cause of action.
The plaintiff's amended petition alleges that it is a corporation, organized under the laws of Nebraska, and a resident thereof; that the Century Indemnity Company is organized under the laws of Connecticut; that the defendant Herbert Lindquist is a resident of Nebraska and defendant Victor R. McDonald a resident of the state of New York; that the Aetna Insurance Company is organized under the laws of Connecticut, and the Century Indemnity Company is under and controlled by the Aetna Insurance Company, and is one of the Aetna group; that plaintiff was engaged in the business of writing insurance policies in all lines of insurance, except life, through persons who were undercontract with it duly licensed under the laws of Nebraska assoliciting agents; that the amount of business is detailed in volume and revenue; that it was a necessary part of said business that plaintiff should be permitted to become agents for insurance companies, to act through licensed soliciting agents, and do any and all things customary for such insurance agent to do for its customers; that on November 16, 1932, the Century Indemnity Company presented to the plaintiff a fake and fictitious claim of indebtedness; that in November, 1933, it fixed such indebtedness at $2,613.13, when, in fact, the plaintiff was not indebted to such company and refused to pay any claim. The amended petition then details eight overt acts of alleged unlawful conspiracy on the part of the defendants, and alleges that the conspiracy was secret and an unlawful combination in the form of a trust and a conspiracy in restraint of trade and commerce in the state of Nebraska, devised and carried out jointly by the defendants. The alleged overt acts constituting *82 the conspiracy will not be here set out, for the reason that if the plaintiff is not prohibited from acting as an agent for insurance companies the amended petition states a cause of action. This brings us to the defendants' contention, which may be stated concisely as follows:
A corporation cannot be licensed as an insurance agent in the state of Nebraska, and cannot indirectly do what it is prohibited by law from doing. A party, whose sole claim for damages is based on a violation of law, has no legal right that has been infringed and cannot recover, regardless of laws alleged to have been violated by defendants.
"In the exercise of its police power the state may adopt statutes for the regulation of insurance agents, and may require that any agent doing business in the state shall have a certificate or license under state authority for the transaction of such business." In re Carlson,
In Nebraska the legislature in 1913 adopted an insurance code entitled "Insurance." The pertinent part of section
"`Persons also are divided by the law into either natural persons or artificial. * * * Artificial are such as are created and devised by human laws, for the purposes of society and government, which are called corporations, or bodies politic.' 1 Blackstone Commentaries, 123." Chapman v. Brewer,
Section
Under the rule of law requiring the court to construe statutesin pari materia together, so as to harmonize and give effect to their various provisions, we refer to section
Section
Section
"In determining the intention of the legislature, all provisions of the statute bearing upon the point in dispute should be taken into consideration and given due weight." Cityof Lincoln v. Janesch,
"All statutes in pari materia must be taken together and construed as if they were one law." Hendrix v. Rieman,
"In the construction of a statute, effect must be given, if possible, to all its several parts. No sentence, clause or word should be rejected as meaningless or superfluous, if it can be avoided; but the subject of the enactment and the language employed, in its plain, ordinary and popular sense, should be taken into account, in order to determine the legislative will."Hagenbuck v. Reed,
"In construing a statute, it is the duty of the court to discover, if possible, the legislative intent from the language of the act and give effect thereto." Hansen v. Dakota County,supra.
Insurance agencies perform many functions other than *85
the soliciting of the business which is one factor. Other factors constitute proper coverage, adjustments of claims, assisting the insured in obtaining the lowest premium for the risk covered, the appraisal of properties for insurance purposes; the kind and nature of insurance to be had on certain coverages; the extent of the insurance, both advisory and in principle. It is obvious from a minute examination of the provisions of the statutes, as herein before stated, relating to the subject of insurance, that the legislature had in mind all of such items, and made the requirement that every insurance-soliciting agent or broker should procure a license, seeking to limit the soliciting of insurance writing to a natural person. Comp. St. 1929, sec.
We find expression for this analysis in the case of Rogers v.Ramey,
In the instant case the Century Indemnity Company had *86
previously recognized the plaintiff by contract as an agency of said company, and one of the allegations of plaintiff's amended petition, in referring to conspiracy, alleges in substance that the defendants, by their acts, made it impossible for the plaintiff to procure contracts with insurance companies to act as agents. The competitive feature, as provided in section
We have read the cases cited by the defendants, but believe that under our analysis of the statute involved, together with the law applicable thereto, the Nebraska legislature made the requirement only that corporations and copartnerships, acting as insurance agents, must transact their business through licensed soliciting agents, who are natural persons. Such a construction gives force and effect to every word and phrase of the entire chapter on insurance in regard to agents. An agent, licensed as a soliciting agent, will be accountable to the department of insurance for his acts, and the benefits of that fixed responsibility will be obtained by the individual sought to be controlled by this section of the statute.
There is no doubt, under the Nebraska law, that a copartnership or corporation is recognized as a legal entity and is a valid and proper means of combining money, property and directed energy, and our courts have generally recognized that a corporation is protected under the law in its right to engage in any lawful business. The plaintiff in this case, as an insurance agency, acted by and through natural persons, duly licensed as soliciting agents. Such persons were employed by the corporation. We cannot say that the corporation was not engaged in a lawful business, would not have the right to employ agents, and would be denied the privileges and protection under the law in this state and not be permitted to engage in business under the circumstances, as stated in the amended petition.
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