Cain v. State

• Decision Date: 10 February 1913
• Citation: 60 So. 731,103 Miss. 701
• Court: Mississippi Supreme Court
• Parties: E. A. CAIN v. STATE

60 So. 731

103 Miss. 701

E. A. CAIN v. STATE

Supreme Court of Mississippi

February 10, 1913

October 1912

APPEAL from the circuit court of Amite county, HON. E. E. BROWN Judge.

E. A Cain was convicted of unlawfully acting as agent for a fire insurance business and appeals.

The section of the chapter on insurance in Mississippi Code 1906 construed by the court in this case, are as follows:

"Section 1248. Any person who shall do or perform any of the acts or things mentioned in the laws governing insurance companies the doing or performing of which is there provided, shall constitute such person the agent of the company, for any insurance company not organized under or incorporated by the laws of this state, without such company having first complied with the requirements of the laws of this state or having received the certificate of authority from the commissioners of insurance, as required by law, shall be guilty of a misdemeanor and, on conviction, be fined five hundred dollars and be imprisoned in the county jail not exceeding twelve months, or by either; but the penalties of this section shall not apply to an adjuster of a loss, if the insurance could not have been obtained from a company which had complied with the laws of this state or if the insurance was given at a rate fully one-half of one per centum less than that charged by such companies."

"Section 2615. Every person who solicits insurance on behalf of any insurance company, or who takes or transmits, other than for himself, an application for insurance, or a policy of insurance, to or from such company, or who advertises or otherwise gives notice that he will receive or transmit the same, or who shall receive or deliver a policy of insurance of any such company, or who shall examine or inspect any risk, or receive, collect or transmit any premium of insurance, or make or forward a diagram of any building, or do or perform any other act or thing in the matter or consummation of any contract of insurance for or with any such insurance company, other than for himself, or who shall examine into or adjust or aid in adjusting any loss for or on behalf of any such insurance company, whether any of such acts shall be done at the instance or request or by the employment of the insurance company, or of or by any broker or other person shall be held to be the agent of the company for which the act is done or the risk is taken as to all the duties and liabilities imposed by law, whatever conditions or stipulations may be contained in the policy or contract; such person knowingly procuring by fraudulent representations payment, or the obligation for the payment of a premium of insurance, shall be punished by a fine of not less than one hundred dollars nor more than five hundred dollars, or be imprisoned for not more than one year."

"Section 2616. An insurance agent shall be personally liable on all contracts of insurance lawfully made by or through him, directly, or indirectly, for or in behalf of any company not authorized to do business in the state."

Affirmed.

R. S. Stewart, for appellant.

Now to arrive at a full, just and fair judgment of his acts it is necessary to see just what the law says is acting as an agent; in other words, the law has not left us to guess or conjecture at what might or might not be construed to constitute an act the act of an agent, or what act might or might not in the legal purview of an act render the party doing the act the agent of some other person.

Without quoting the full section, section 2615, Code 1906, says among other things, "that any person who solicits insurance for any company--who takes or transmits any application--or policy of insurance for said company, to or from such company, or shall receive or deliver any policy of insurance for such company, or collect or transmit any premium for such company, etc.

Now I especially direct the attention of your court to this statute and note in each instance where the act is defined or the act that constitutes the agency is defined it is circumscribed or limited by the phrase "for such company." In other words with the light of the statute before us, it becomes necessary then that the acts as enumerated in this section should be done, and in addition to this must be done for the company and none other.

Westbrook admits that he never heard of the name of the company, admits that Cain told him that he did not represent a company at first, when the question of his insuring the shop came up, and whether Cain approached him or he approached Cain became material only to the extent of showing the fact that Westbrook wanted insurance, asked for it, and sought it, and that he requested Cain to let him know if he found a company that would write it, and inferentially corroborating Cain in his testimony that he was acting for Westbrook, and, too, that Cain never held himself out as agent or never advertised himself as agent for the company; but be this as it may, and even if the exclusion of the evidence was proper, and the exception of the defendant thereto without merit, there is yet enough in the record, a great part of it introduced by the state, that goes to show that the accused in any of the acts complained of, and there are in fact but two--that he solicited the insurance, that he delivered the policy and collected the premium not for the outlawed company--was from the state's evidence acting for W. C. Farrar & Company, and from the defendant's contention, for Westbrook the insured.

The policy of insurance was not admissible against the defendant, for it shows upon its face two facts that negative the idea of his having any connection with the same as an agent, and consequently could throw no light whatever on the issue being tried. Was Cain acting as agent for an outlawed company?

The policy shows on its face that it was procured and secured by W. C. Farrar & Company and not Cain. That the risk was obtained by said company and not Cain. That the application came through said company and not Cain. That the policy was issued to said company as brokers or buyers and not to Cain. That the agents in securing the policy, and the parties who represented the outlawed company in the transaction were Chas. T. List & Company and not the accused. But if the policy were admissible, if the introduction thereof were necessary to the maintaining or sustaining of the state's case, then I submit that the court fell into a fatal and into a reversible error, when it, after the introduction of the policy over defendant's objection, then permitted the state to change, vary, and contradict this document by parol proof. It would be considered the merest of folly for me to cite case or rules to this court holding that parol is not admissible to vary or contradict a written instrument. 'If this policy were admissible, and we submit that it was not, it shows that Farrar secured and procured its issuance, and sent in the application, and it shows that the company was represented by Chas. T. List & Company, and none others, then I most respectfully submit that it was error and reversible error for the court to permit the introduction of evidence to show that Cain represented the company in securing the policy or in acting as agent as to its issuance. If the policy were admissible, it became and was a witness on the part of the state to the effect that it was issued by the Franklin Fire Insurance Company, because this fact appears upon its face, and is signed by the supposed president of the concern, if president it ever had, and this is all the proof that the state had that the Franklin...