Rehearing
Denied May 4, 1939.
Further
Rehearing Denied June 8, 1939.
Appeal
from Circuit Court, Jefferson County; J. Edgar Bowron, Judge.
Quo
warranto by the State of Alabama, on the relation of Jim C
Smith, and Jim C. Smith, against J. L. Wilkey and J. L
Wilkey, Adjuster, Inc. From a judgment of ouster, respondents
appeal.
Reversed
and remanded.
In quo
warranto proceedings charging respondents with practicing law
without license, special plea of respondents that respondents
were not employees of casualty and fire insurance companies
"in ordinary sense," nor "in privity"
with such companies but were engaged in insurance adjustment
business representing regular clientele, showed that their
acts of settling claims for such companies constituted
"practice of law" prohibited by statute. Code 1923
§ 9932, par. 1; Gen.Acts 1931, p. 606.
The
amended information is in substance as follows:
"Third:
That J. L. Wilkey Adjuster, Inc., a corporation, was
organized on the 2nd day of January, 1932, in Jefferson
County, Alabama, and has its principal office or place of
business in said City of Birmingham, Jefferson County,
Alabama, and said defendant corporation is still existing
and being operated in Jefferson County, Alabama.
"Fourth:
That Plaintiffs are informed and have probable cause to
believe and do believe and, therefore, aver the facts to
be: That the defendants, J. L. Wilkey and J. L. Wilkey,
Adjuster, Inc., a corporation, which corporation from the
time of its creation has been managed, controlled and
practically owned by the individual defendant, J. L.
Wilkey, who still manages, controls and practically owns
said corporation, have been continuously since, towit: in
January, 1932, and still are intruding into the profession
of the practice of law in Jefferson County, Alabama and
elsewhere in this State, and unlawfully practicing law in
Jefferson County, Alabama, and elsewhere in this State,
which is a profession requiring a license, or certificate
or other legal authorization within this State, without
having obtained such license or certificate or other legal
authorization within this State.
"Wherefore,
premises considered: Your Plaintiffs pray:
"1.
That process or writ in the nature of quo warranto issue
as provided by law, requiring and commanding the said J.
L. Wilkey and J. L. Wilkey, Adjuster, Inc., a
corporation, separately and severally, to show by what
warrant or authority they, separately and severally, are
and have been intruding into the profession of law and
practicing said profession of law in Birmingham,
Jefferson County, Alabama, and elsewhere in this State;
"2.
That upon final hearing of this cause the said J. L.
Wilkey and J. L. Wilkey, Adjuster, Inc., a corporation,
separately and severally, be excluded or be prohibited
from practicing such profession in Jefferson County,
Alabama, or elsewhere in the State of Alabama, until such
time when they or either of them, respectively may become
legally licensed to practice law in the State of Alabama;
"3.
That all such other, further and different orders and
processes be made and issued by the Court as the law in
such case may provide, and that such other, further,
general or different relief be granted and adjudged to
the Plaintiffs as the nature of this case may require;
"4.
That the Plaintiffs be adjudged in this cause to recover
costs of these proceedings against said defendants,
separately and severally."
Defendant
filed pleas among others, as follows:
"1.
The defendants and neither of them is guilty of the matters
and things therein alleged.
"2.
The allegations of said petition are untrue."
Plea 13
is as follows:
"The
defendants, and each of them, are employed by several
casualty and fire insurance companies and liability carriers
and in this employment when one of the said companies by
itself or its representative, advises the defendants that an
accident or fire has occurred which involves an assured of
such company, the defendants, in behalf and on request of
such companies, investigate such accident or fire loss by
interviewing witnesses and by taking down in writing
statements of said witnesses, by having the physical damages
to the person or property of the parties to such accident or
fire reported on by physicians or repair men, as the case may
be, in order to determine the severity of physical injuries
or extent of property damage sustained by the parties
involved, from such accidents or fire, which facts are
reported by defendants to their said employers and, in those
cases where the employers so direct, these defendants
endeavor to settle such claims for physical injury or
property damage sustained by such parties from such accident
or fire by payment of a sum satisfactory to such injured or
damaged party or parties, and to the said employers of these
defendants; and in all such cases where such settlement
cannot be made, then these defendants refer to the legal
representatives of their said employers the said facts,
statements of witnesses and other information developed by
these defendants on such investigation, to be handled by such
legal representatives. These defendants further say that the
above are the only acts done or business in which these
defendants are now engaged or propose to engage in
future, and that all of the acts and things so done by these
defendants, as above detailed, are all done under the orders
and superintendence of the legal department of defendants
said employers. These defendants further say that they do not
represent plaintiffs or individual claimants, nor seek to do
so, but are only employed by companies against which claims
are made or may be made growing out of or incident to an
accident or fire, as aforesaid.
"The
type or kind of business done and the method of conducting
their business as herein set out is not only the type,
method, manner and course of business employed or engaged in
by the defendants and each of them at the time of the
institution of this suit, and for a long time, towit more
than a year, prior thereto, but is the only type, method,
manner and course of business or activity engaged in by
defendants or either of them since the filing of this
complaint or that they propose or claim the right to engage
in at any time in the future. They further aver that during
the times herein before stated they and neither of them are
employed by or act for any other person, firm or corporation
in any capacity whatsoever, except said insurance companies
above described and that they bear the relation of employee
to employer in the ordinary sense as well as the legal sense
to each of said insurance companies. The business engaged in
by the defendants is known as 'insurance adjuster'
and as such is provided for by the revenue laws of the State
of Alabama and by the License laws of the City of Birmingham,
and the defendants have duly and legally paid to the State of
Alabama, the County of Jefferson and the City of Birmingham
their licenses to transact the said business carried on by
them for the year of 1932 and many years prior thereto and
for each year since the year 1932. The defendants are not
now, have not within the time hereinbefore stated, and do not
claim the right to nor propose in the future to engage in or
intrude into the practice of the profession of law in
Jefferson County or in the State of Alabama or
elsewhere."
The
decree appealed from is in pertinent part as follows:
"Now
therefore, it is hereby ordered and adjudged by the Court
that the said defendants, J. L. Wilkey and J. L. Wilkey,
Adjuster, Inc., a corporation, are now and have been
continuously since, to-wit: in January, 1932, unlawfully
intruding into the profession of the practice of law in
Jefferson County, Alabama, and elsewhere in this State, and
unlawfully practicing law in Jefferson County, Alabama, and
elsewhere in this State, which is a profession requiring a
license or certificate, or other legal authorization within
this state, without having obtained such license or
certificate or other legal authorization within this State.
"It
is further ordered and adjudged by the Court that the
defendants, J. L. Wilkey and J. L. Wilkey, Adjuster, Inc., a
corporation, be and they, separately and severally, are
hereby excluded from and prohibited from practicing the
profession of law, or from practicing law in Jefferson
County, Alabama, and elsewhere in this State of Alabama,
until such time when they or either of them, respectively,
may become legally licensed to practice law in the State of
Alabama; and in this respect said defendants, separately and
severally, are hereby specially enjoined and restrained from
engaging or doing the following matters and things,
separately and severally, which are such matters and things
as do constitute the practice of law, viz:
"(a)
In a representative capacity appearing as an advocate or
drawing papers, pleadings or documents, or performing any
court or a Justice of the Peace, or a body, board,
committee, commission or officer constituted by law or
having authority to take evidence in or settle or determine
controversies in the exercise of the judicial power of the
state or subdivision thereof;
"(b)
For a consideration, reward or pecuniary benefit, present
or anticipated, direct or indirect, advising or counseling
another as to secular law, or drawing or procuring or
assisting in the drawing of a paper,
...
