107 F. 389 (5th Cir. 1901), 922, Fidelity & Cas. Co. of New York v. Dorough

Docket Nº:922.
Citation:107 F. 389
Party Name:FIDELITY & CASUALTY CO. OF NEW YORK v. DOROUGH.
Case Date:March 19, 1901
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit
 
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Page 389

107 F. 389 (5th Cir. 1901)

FIDELITY & CASUALTY CO. OF NEW YORK

v.

DOROUGH.

No. 922.

United States Court of Appeals, Fifth Circuit.

March 19, 1901

Page 390

[Copyrighted Material Omitted]

Page 391

P. B. Trafford, W. Frank Knox, F. M. Etheridge, and Ben B. Cain, for plaintiff in error.

H. B. Marsh, A. G. McIllwaine, and J. M. Fitzgerald, for defendant in error.

Before PARDEE, McCORMICK, and SHELBY, Circuit Judges.

PARDEE, Circuit Judge (after stating the facts as above).

It is conceded there is no law in the state of Texas authorizing the damages and attorney's fees awarded in the verdict and judgment in this case, unless it be found in article 3071, Rev. St. Tex., adopted in 1895, as follows:

'Art. 3071. In all cases where a loss occurs and the life or health insurance company liable therefor shall fail to pay the same within the time specified in the policy, after demand made therefor, such company shall be liable to pay the holder of such policy, in addition to the amount of the loss, 12 per cent. damages on the amount of such loss, together with all reasonable attorney's fees for the prosecution and collection of such loss.'

This section was a part of an act originally passed on May 2, 1874, prior to which time there were no statutes in the state of Texas regulating insurance companies. Other sections of the act of 1874, and afterwards incorporated in the Revised Statutes, are as follows:

'Art. 39073. It shall be unlawful for any life or health insurance company to take any kind of risks or issue any policies of insurance except those of life or health, nor shall the business of life or health insurance companies in this state be in any wise conducted or transacted by any company which in this, or any other state or country, is engaged or concerned in the business of marine, fire, inland or other insurance.'

'Art. 3061. It shall not be lawful for any person to act within this state

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as a agent or otherwise in soliciting or receiving applications for insurance of any kind whatever or in any manner to aid in the transaction of the business of any insurance company incorporated in this state or out of it, without first procuring a certificate of authority from the commissioner of agriculture, insurance statistics and history.'

In February, 1875, another act was passed regulating the business of fire, marine, and inland insurance companies. See Rev. St. Tex. arts. 3074, 3085. And in April, 1895, an act was passed which, among other things, defined and distinguished life and accident insurance companies as follows:

'Art. 3096a. A life insurance company shall be deemed to be a corporation doing business under any charter involving the payment of money or other thing of value to families or representatives of policy-holders, conditioned upon the continuance or cessation of human life, or involving an insurance guarantee, contract or pledge, for the payment of endowments or annuities. An accident insurance company shall be deemed to be a corporation doing business under any charter involving the payment of money or other thing of value to families or representatives of policy-holders. conditioned upon the injury, displacement or death of persons resulting from traveling or general accident by land or water.'

Chapter 55 of the Laws of 1895 provides as follows:

'That there is hereby imposed upon and shall be collected from each and every person or firm acting as general agents of life, fire, marine and accident insurance companies who may transact any...

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