Aetna Ins. Co. v. Robertson

• Decision Date: 13 November 1922
• Docket Number: 22671
• Court: Mississippi Supreme Court
• Parties: AETNA INS. CO. et al. v. ROBERTSON, STATE REVENUE AGENT

94 So. 7

131 Miss. 343

AETNA INS. CO. et al. v. ROBERTSON, STATE REVENUE AGENT

No. 22671

Supreme Court of Mississippi

November 13, 1922

September 1922

ETHRIDGE and COOK, JJ., dissenting.

1 EQUITY. Laches cannot imputed to state and invoked as defense in suit for violation of anti-trust laws.

Laches cannot be imputed to the state and invoked as a defense in a suit brought by the State Revenue Agent to collect penalties that have been incurred because of a violation of the state's anti-trust laws. (Affirmed by equally divided court.)

2. CONSTITUTIONAL LAW. Criminal law. One hundred ninety-five thousand eight hundred and seventy-five dollars imposed on insurance company for conspiracy to fix rates, held not constitutionally excessive.

A penalty of one hundred ninety-five thousand eight hundred and seventy-five dollars imposed on an insurance company for conspiring with other insurance companies to fix and maintain the rates of insurance throughout a state, which conspiracy was continuous for a period of fourteen years, is not excessive in the constitutional sense, and therefore does not violate the due process of law clauses of the state and federal Constitutions, nor section 28 of the state Constitution of 1890, which provides that excessive fines shall not be imposed.

3. APPEAL AND ERROR. Judgment of trial court not reversed except by majority of participating judges of supreme court holding specific supporting ruling erroneous.

Before a judgment or decree of a trial court can be reversed by the supreme court, a majority of the judges thereof participating in the decision must concur in holding that a specific ruling of the trial court on which the judgment or decree is based is erroneous.

4 EQUITY. Motion to file cross-bill made after final decree should be overruled.

A motion by a defendant in a suit in equity for leave to file a cross-bill should be overruled when made after a final decree has been rendered in the cause.

5 EQUITY. Motion to file cross-bill which presents no ground for relief should be overruled.

A motion by a defendant in a suit in equity for leave to file a cross-bill should be overruled when the cross-bill sought to be filed presents no legal ground for the relief therein prayed for.

6. MONOPOLIES. Contracts made by insurance companies with agents, not part of agreement to fix rates, held valid.

The contracts made with a member of a trust and combine, which are void under the provisions of section 5003, Code 1906 (Hemingway's Code, section 3285), are such as are in furtherance of the agreement by which the trust and combine was formed, and not such as are merely collateral thereto. Consequently contracts made by an insurance company with its local agents which are not part of an agreement entered into by the company with other companies to fix and maintain rates are not affected by that statute.

7. RECEIVERS. Insurance agents joined in attachment suits with companies held not entitled to notice of receiver's appointment to collect companies' dues.

The agents of insurance companies having in their hands funds collected by them for the companies from persons to whom the companies had issued insurance policies, and who have been joined as codefendants with the companies in an attachment in chancery under section 536, Code of 1906 (Hemingways Code, section 293), by the State Revenue Agent are not entitled to notice of the appointment at the request of the Revenue Agent of a receiver to collect all money due the companies, and hold the same subject to the orders of the court.

8. RECEIVERS. Receiver under attachment in chancery where resident defendant about to remit funds to nonresident defendant held proper.

When it is made to appear in an attachment in chancery, under section 536, Code of 1906 (Hemingway's Code, section 293), against a nonresident with whom a resident of the state who is indebted to him has been joined as a codefendant, that the resident defendant is about to remit to the nonresident defendant the money due him, it is not error for the court, at the request of the complainant, to appoint a receiver to collect from the resident defendant the money due by him to the nonresident defendant, and to hold it subject to the orders of the court.

ON SUGGESTION OF ERROR.

[95 South 137.]

J. B. Harris, for appellants.

While it is true that the amount in dollars and cents involved in this case is enormous, that fact does not in any way affect the legal principles which underlie the case and which must determine the correctness of the decree in the court below; but where the effect of the judgments is so disastrous to the parties against whom they are rendered and other innocent persons who are affected and involved, and which affect so seriously the public at large, the court will necessarily scrutinize the facts with the greatest care and apply the law with equal strictness.

The rule could not be better stated than it is by Mr. Justice GRAY in the case of the United States v. Reading Company, 183 F. 427: "The things herein charged are violations of law, and constitute the crimes denounced by the act." The court will bear in mind that the offense charged in the case at bar is made a felony, and punishable as such in addition to the enormous pecuniary penalties prescribed.

Continuing the quotation from Mr. Justice GRAY in the case cited above: "We refrain from saying that on that account, the degree of proof of their commission should be that required upon trial, of indictments therefor. It suffices to say that the evidence should be such as to convince the mind of the tribunal to which it is addressed that the acts denounced by the law have been committed. The consequences attending the finding of the defendants guilty of the act charged in the petition in this proceeding are certainly very serious, not only to the defendants, but to a large portion of the public and to many innocent persons involved in this transaction. As we have said before, this consideration can only be pertinent to a more careful consideration of the testimony adduced in support of the charge made in the petition." Continental Tobacco Company v. State, 75 S.W. 737; United States Mutual Association v. Barry, 131 U.S. 100, 32 L. Ed. 60.

BURDEN OF PROOF.

The crux of the case, the vital and essential fact to be proved, was an agreement, contract, combination, association or confederation to fix or limit in the state of Mississippi the price of premium to be paid for insuring property against loss or damage by fire, etc., in the state of Mississippi or that the defendants had placed the conduct of their business in the hands of a rating company, and the burden was on the state to prove this.

There was a total failure of any proof of an agreement, combination, or conspiracy of any kind. The existence of any agreement, express or implied, was denied by the pleadings, and by the sworn testimony, as the court will see, of every one of the defendants and by every insurance agent in the state of Mississippi, from every possible point of view. Vol. IV, sec. 2491, page 3534; Alabama & Vicksburg Railroad Company v. Thornhill, 106 Miss. 386; 30 Cyc. page 358; 21 R. C. L., page 230; Atchison T. & F. Ry. Co. v. U. S., 172 F. R. 194; Wigmore on Evidence, pages 3531-3532; 12 C. J., paragraph 234, page 639.

Conspiracies cannot be established by mere suspicions nor does the evidence of mere relationship between the parties or associations show a conspiracy. 12 C. J. 639.

PRESUMPTION OF INNOCENCE.

But there is another important aspect of the case which must be determinative and that is it is a case in which the state is depending entirely upon circumstantial evidence, and that being so there are certain well settled rules of law governing it which this court must apply, and we confidently submit that when these rules are applied the court must hold that the state has failed to make out a case, has failed to meet the burden.

CIRCUMSTANTIAL EVIDENCE.

As we have said above there are certain presumptions which must be indulged in favor of the defendants and the rule applies in civil cases as well as in criminal cases; the rule is thus stated in 22 C. J., page 144. White v. Bates, 234 Ill. 276, 84 N.E. 906; Hendicks v. Calaway, 211 Mo. 536, 111 S.W. 60; Cooper v. Springs Valley Water Company, 16 Cal. 17, 16 P. 298; Bowman v. Little, 101 Maryland, 237, 61; Insurance Company v. Virginia, 108 Va. 832, 128; Wilkis v. Collins, 48 Miss. 496; 16 Cyc. page 1082; 17 Cyc. page 817; Banks v. Banks, 118 Miss. 787, 7 Cyc. page 817; 23 C. J., section 1792, page 49; Haywood v. State, 90 Miss. 461; 124 La. 256, 50 So. 30; 12 C. J., par. 234, page 639; Mooney v. Mooney, 224 Mo. 327; Blides v. Chicago Railroad Company, 89 Neb. 689; Asbach v. Chicago Railroad Company, 74 Iowa, 248; Lopez v. Campbell, 163 N.Y. 340; American Mortgage Company v. Whalley, 63 F. 743; 12 C. J., page 639; Ballantins v. Cummins, 220 Pa. 621, 70 A. 546; 22 C. J., page 84; Osborn v. Ramsey, 191 F. 114; U. S. v. Ross, 91 U.S. 281, 284, 23 L. Ed. 707; Manning v. Insurance Co., 100 U.S. 693, 25 L. Ed. 761.

THE PRINTERS OF RATES WERE NOT AGENTS OR EMPLOYEES OF THE SOUTHEASTERN TARIFF ASSOCIATION.

Competent and relevant testimony of unimpeached witnesses should not be held to be contradicted by inference and circumstantial evidence unless the circumstances and the natural inference to be deduced therefrom cannot in reason be reconciled to the conclusion that the direct evidence is true. Blyde v. Chicago R. R. Co., 89 Neb. 689; Asbac v. Chicago R. R. Co., -- Iowa, 248; Lopez v. Campbell, 163 N.Y. 340; American Mortgage Co. v. Whalley, 63 F. 743.

THE MISSISSIPPI RATING COMPANY NOT THE EMPLOYEE OR AGENT OF THE DEFENDANTS.

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