Fikes v. State

• Decision Date: 08 January 1906
• Court: Mississippi Supreme Court
• Parties: CLARENCE I. FIKES v. STATE OF MISSISSIPPI

39 So. 783

87 Miss. 251

CLARENCE I. FIKES v. STATE OF MISSISSIPPI

Supreme Court of Mississippi

January 8, 1906

FROM the circuit court of Lauderdale county, HON. ROBERT F COCHRAN, Judge.

Fikes the appellant, was charged before and convicted by a justice of the peace upon an affidavit which charged that he "did unlawfully assume to act as insurance agent--to wit, as agent for the Union Mutual Aid Association of Mobile Alabama--without license therefor, as provided and required by Laws 1902, ch. 59."

A demurrer was filed to the affidavit by the defendant when the case reached the circuit court on his appeal, which demurrer raised the question whether the affidavit contained a sufficient description of the offense. The demurrer was overruled, and the case went to the jury on the evidence and a plea of not guilty. The defense was that the association for which defendant was soliciting insurance did not come within the meaning of the statute, being neither a life insurance company proper nor a fraternal order, and therefore not engaged in a business which it is the duty of the insurance commissioner to regulate, and that a license or permit from the insurance commissioner was unnecessary to enable an agent to solicit for the association, which simply agreed and undertook, in consideration of the payment by each member of weekly dues, to provide its members with a sick benefit and a burial benefit in case of death. Laws 1902, ch 59, sec. 10, p. 65, is as follows:

"All indemnity or guarantee companies, all insurance companies corporations, associations, and fraternal orders doing an insurance business, whether domestic or organized under the laws of other states or governments, transacting or to be admitted to transact business in this state, shall be placed under this department and shall be subject to the inspection and supervision of the commissioner."

Fikes was again convicted in the circuit court, and appealed to the supreme court.

Reversed and remanded.

Miller & Baskin, and Amis & Dunn, for appellant.

All of the material facts about which the defendant was entitled to be informed are entirely omitted from the affidavit, and he is left entirely to conjecture as to what offense he is charged with having committed and of the facts constituting his offense. The affidavit amounts to no more in its allegations than simple conclusions of law, and we feel that no citation of authority is necessary on the point that in order to sufficiently charge a statutory offense, under a statute like the one under consideration, it is necessary to set forth the facts and circumstances which go to make up the offense, and it is not sufficient to charge the offense in the language of the statute alone. Lewis v. State, 49 Miss. 354; Dee v. State, 68 Miss. 601; Sullivan v. State, 67 Miss. 346; Rawls v. State, 70 Miss. 739; Bardwell v. State, 72 Miss. 535; Roberts v. State, 72 Miss. 110.

The testimony failed to show (1) that the Union Mutual Aid Association of Mobile, Alabama, was an insurance company; (2) that, if it did appear from the testimony that said association is an insurance company, there was no allegation in the affidavit to that effect, and the testimony on this point would, for that reason, be incompetent and should not have been received; and (3) that, assuming the first and second propositions to be true and to have been properly proven, the testimony failed to show that Fikes was an agent of said insurance company by any act or thing done by him in pursuance of such agency. The testimony for the state failed to show that there was any such organization, association, company, or corporation in existence in Mobile, Alabama, or anywhere else.

Assuming that there is such a thing as the Union Mutual Aid Association, that through its agents it receives weekly payments for membership dues therein, and that Fikes represented the association--stripped of all circumlocution, what have we? Simply an association, agreeing, in the case of the death of a member, to pay a burial benefit of $ 30.00, and in case of sickness of the member, to pay a weekly sick benefit of $ 5.00. Is such contract a contract of insurance, within the meaning of Laws 1902, ch. 59? Said act specifically mentions fire, life, plate-glass, marine, accident, and other classes of insurance and insurance companies, and also deals with fraternal orders, but nowhere do we find any provision relating to burial associations or sick-benefit associations. No license fees are provided for such associations; and, indeed, it seems that the legislature omitted to make any provision whatever for the superintendence or control of this class of business by the insurance department. Under the terms of the certificate introduced in evidence, it is impossible to make more out of the Union Mutual Aid Association than an association engaged simply in the business of providing a sick benefit and a burial benefit. Looking to the provision of said act of 1902, we ask, What license fee would the insurance commissioner be authorized to accept from such an association? What certificate would he be authorized to issue to such an association for authority to engage in business in the state of Mississippi? After assuming the existence of the Union Mutual Aid Association, that it was engaged in business in Mississippi, and that Fikes was its agent, still no violation of law was shown in this case.

J. N. Flowers, assistant attorney-general; and Fewell, Bozeman & Fewell, for appellee.

It appears from the general purposes of the law creating the insurance department that the insurance commissioner was to be given jurisdiction over every form of insurance. If there is no provision in the law for the admission of a company doing a particular kind of insurance business, then such company cannot do business in this state. The purpose of the legislature could be easily defeated if an insurance company could avoid supervision by transacting its business in ways not provided for by law. It was the purpose in the creation of the department to make insurance safe for people who do not make careful investigation before paying premiums, and to allow no concern to do business in this state whose methods of business are not considered safe. It was not intended to regulate certain kinds of insurance and leave other kinds free. Especially was it intended to prohibit business by concerns which collect dues from their members, have no representative form of government, are conducted for the benefit of certain officers who may have organized the companies and are at the head of them, have no capital stock and no...