List v. Commonwealth

• Decision Date: 03 January 1888
• Docket Number: 166
• Citation: 12 A. 277,118 Pa. 322
• Parties: G. B. LIST v. THE COMMONWEALTH
• Court: Pennsylvania Supreme Court

12 A. 277

118 Pa. 322

G. B. LIST v. THE COMMONWEALTH

No. 166

Supreme Court of Pennsylvania

January 3, 1888

Argued November 2, 1887

ERROR TO THE COURT OF QUARTER SESSIONS OF ALLEGHENY COUNTY.

No. 166 October Term 1887, Sup. Ct.; court below, No. 261 June Term 1887, Q.S.

In the court below an indictment was found against G. B. List charging, in the first count, that the defendant "did then and there unlawfully transact business within this commonwealth, as the agent of an insurance company of another state, to wit, as the agent of the Mutual Fire Insurance Company of Baltimore, in the state of Maryland, without having first procured a certificate of authority so to act from the insurance commissioner of this commonwealth contrary," etc.; and, in the second count, that said defendant "unlawfully did then and there receive premiums and forward applications, and otherwise transact business for an insurance company and association not of this state, to wit, for the Mutual Fire Insurance Co. of the city of Baltimore, in the state of Maryland, without having received authority agreeably to law for that purpose contrary," etc.

A demurrer, and a motion to quash, for grounds raised on the argument in this court, were overruled, and, the defendant pleading not guilty, a statement agreed upon by counsel was read to the jury as containing the admitted facts of the case. This statement was as follows:

That G B. List, the defendant, is and was at the time of the alleged offence a citizen and resident of Baltimore, Maryland, and was engaged in representing the Mutual Fire Insurance Company of Baltimore, Md., in the capacity of inspector, his compensation and expenses being paid by said company. Said company was a foreign fire insurance company, incorporated in and by the state of Maryland, and not licensed, and having no authorily from the insurance commissioner to do business in Pennsylvania, and had not complied with the laws of Pennsylvania relating to foreign insurance companies.

On February 12, 1887, said defendant visited the city of Pittsburgh and delivered to business men in said city his card, announcing himself as inspector, together with said company's form of premium note and its financial statement to December 31, 1886, and also a list of its officers, directors and committee, which card and statement list are hereto attached and made a part of this statement of facts.

That afterward the defendant visited C. F. Wells, in the city of Pittsburgh, and inquired when his policies of insurance would expire in companies in which said Wells was already insured, and requested permission to inspect the premises of said Wells, and this for the purpose of enabling said Mutual Fire Insurance Company of Baltimore, Maryland, to place a policy or policies of insurance thereon.

That prior to the visit of defendant to the city of Pittsburgh, Messrs. Reed and Edwards received a letter from the secretary of said company, dated February 3, 1887, which letter is hereto attached and made a part of this statement of facts.

That defendant was sent to the city of Pittsburgh by the said company for the purpose of inspecting buildings, ascertaining their exposures, and making diagrams of the same with respect to their desirability as insurance risks for acceptance by said Mutual Fire Insurance Company of Baltimore, Maryland, and that he went to the said Wells and others in the city of Pittsburgh for said purpose.

It is further admitted that on the day and year last aforesaid defendant inspected the Franklin Glue Works, a building in the county of Allegheny in the state of Pennsylvania, for the purpose aforesaid; that he promptly thereafter transmitted a report of such inspection to said company, which company immediately thereafter, for a premium paid to it, placed upon the said glue works said company's policy of insurance against loss by fire. That in pursuance of said employment as inspector, on the day and year last aforesaid, defendant was engaged in the city of Pittsburgh in inspecting risks for the purpose aforesaid, and transmitted reports of his inspection to said company in Baltimore. It is further admitted that his actions were confined entirely to the said business of inspection, and that he did not negotiate or solicit within this state any contract of insurance, or pretend to effect the same, or receive or transmit any offer or offers of insurance, or receive or deliver a policy, or in any manner aid in the business of placing insurance, except as hereinbefore set forth in this statement of facts.

The court, COLLIER, J., in the charge to the jury, answered the defendant's points as follows:

1. That if they find from all the evidence in this case that the only business transacted by defendant, G. B. List, for an insurance company of another state, consisted in making an examination and inspection of buildings, with reference to their desirability as risks, and reporting the facts, there can be no conviction under the law, and it is their duty to acquit the defendant.

Answer: Refused.

2. That if the jury find from all the evidence in the case that the defendant did not quote rates, or solicit insurance, or receive premiums, or forward the same, or perform any of the duties of an insurance agent, but that defendant's action was confined wholly to inspecting and examining the physical and material condition of buildings, such action was not the "aiding in the placing of insurance" prohibited by the law, and there can be no conviction.

Answer: Refused.

3. That there can be no conviction in this case, for the reason that the act of assembly under which the indictment is framed is obnoxious to the constitution of the United States, being an attempt on the part of the state to regulate commerce among the several states, which is in conflict with art. I, § 8, declaring that "Congress shall have power to regulate commerce among the several states," also with art. IV, § 2, declaring that "citizens of each state shall be entitled to all the privileges and immunities of the citizens in the several states," and also with the XIVth amendment, which declares that "no state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States."

Answer: Refused.

The jury returned a verdict of guilty, together with the statement of facts upon which it was based. A motion for a new trial and in arrest of judgment was overruled and judgment passed that the defendant pay a fine of $500, costs of prosecution, etc. An allowance having been made by Mr. Justice CLARK, the defendant then took this writ assigning for error:

1. The overruling of the defendant's demurrer.

2. The refusing of the motion to quash.

3-5. The answers to the defendant's points.

Judgment affirmed.

Mr. W. P. Potter (with him Mr. W. D. Moore), for the plaintiff in error:

1. By the admitted facts as found by the jury, the defendant was simply an inspector, to examine the condition of buildings affecting their desirability as risks, and his duty was discharged when he reported the facts to his company. He was not such an agent, soliciting risks, as to be within the provisions of §§ 10, 11, 14, act of April 4, 1873, P.L. 20, or § 47, act of May 1, 1876, P.L. 65.

2. If however, the construction put upon these statutes be correct, we contend that the statutes in question are in conflict with § 2, art. IV., of the constitution of the U.S.: "The citizens of each state shall be entitled to all privileges and immunities of citizens of the several states;" and with art. XIV. of the amendments to said constitution: "No...