McGee v. Collins

• Decision Date: 07 April 1924
• Docket Number: 26059
• Citation: 156 La. 291,100 So. 430
• Court: Louisiana Supreme Court
• Parties: McGEE v. COLLINS et al

100 So. 430

156 La. 291

McGEE v. COLLINS et al

No. 26059

Supreme Court of Louisiana

April 7, 1924

Rehearing Denied by Division A May 12, 1924

Appeal from Civil District Court, Parish of Orleans; Hugh C. Cage Judge.

Action by Ira J. McGee against Joseph Collins and others. Judgment for defendants, and plaintiff appeals.

Affirmed.

Boswell & Bryant, of New Orleans, for appellant.

Monroe & Lemann, Milling, Godchaux, Saal & Milling, Spencer Gidiere Phelps & Dunbar, Dufour, Goldberg & Kammer, Richard B. Montgomery, Edward Dinkelspiel, John C. Davey, Edgar M. Cahn, Denegre, Leovy & Chaffe, Miller, Miller & Fletchinger, Eugene J. McGivney, and Edward Rightor, all of New Orleans, for appellees.

THOMPSON, J. ST. PAUL, J., concurs. O'NIELL, C. J., and Rogers and Brunot, JJ.

OPINION

THOMPSON, J.

This is an action by the plaintiff, an insurance agent and solicitor, against 29 other agents and solicitors and 18 life insurance companies doing business in this state, all in solido, for damages for the destruction of plaintiff's business, for loss of profits which he would have made, and for distress of mind, humiliation, and injury to his reputation and standing. He places his damages, all told, at $ 378,500.

The cause which plaintiff alleges brought about his injury and undoing was certain libelous resolutions and publications made by the Life Underwriters' Association of Louisiana acting for and on behalf of itself and the insurance companies doing business in this state and named in plaintiff's petition, and certain slanderous and defamatory remarks uttered by three individuals named in the petition -- all of which libel and slander, plaintiff claims, was the carrying out and in furtherance of a preconceived plan and conspiracy on the part of the insurance companies and their agents and solicitors to prevent the plaintiff from practicing his profession as life insurance solicitor and advisor.

The defendants all filed exceptions of vagueness, of no cause or right of action, and of misjoinder of parties defendant. The exception of no cause of action was sustained as to all the defendants except three individuals, and as to them the exception of misjoinder was sustained.

The resolutions which plaintiff complains of and which he charges were sent out to all the life insurance companies doing business in this state, and which it is alleged were published in the American Insurer, a newspaper of general circulation published in the city of New Orleans, are as follows:

"Twisting in Louisiana.

"Resolution of the Life Underwriters' Association calls attention

"To Practice.

"'Several complaints have been received by the Life Underwriters' Association of Louisiana alleging that Ira J. McGee, who recently opened headquarters in New Orleans, is engaged in the practice of twisting. The matter was considered at a meeting of the executive committee of the association this week, and, after a thorough discussion of the subject, the following resolution calling attention to McGee's operations and condemning the practice of twisting, was passed.'

"It has been brought to the attention of the Life Underwriters' Association of Louisiana that one Ira J McGee, alleging he is an actuary, is suggesting and urging the holders of policies in companies whose representatives are members of the association, to surrender such policies and rewrite in such companies as McGee may propose, representing such a course can be pursued with profit to the insured.

"As life underwriters, knowing that the promises on which such conclusion is based is unprofitable to the insured, we deem it a duty to our clients to put a stop to this practice.

"Therefore, be it resolved that we condemn the practice of canceling old policies in any solvent established life insurance company, to be replaced in the same or any other life insurance company, as we know that it is against the interests of the policy holder.

"Be it further resolved that this practice be brought to the attention of the executive officers of all life insurance companies doing business in the state of Louisiana, and to the general agents or managers of said companies, to the end that all business submitted by the said McGee may be scrutinized to determine whether it involves the surrender of the old policy in any well-established legal reserve life insurance company, and, if it does, the acceptance of such business be declined.

"Be it further resolved that, if said McGee is found guilty of this practice, the company or companies employing him be requested to cancel his license to do business in Louisiana."

The other article which plaintiff claims was libelous, and which he alleges was published in the Times-Picayune, the Daily States, and the Item, is as follows:

"Parasites and Pirates.

"The evidence of prominent bankers, captains of industry and merchants in favor of life insurance for men of all classes is overwhelming.

"Policies now carried are rated at the age of issue and could not be replaced to the insured's advantage at the higher rate applicable to attained age.

"Any man who attempts by so-called audit or adjustment to change life insurance contracts in force is working solely for his own profit. The agent who placed the policy or his company's agency manager, will give you, free of expense, the proper advice with true service. Beware of others.

"The Life Underwriters' Association of Louisiana."

It is alleged that Edward G. Simmons, manager of the Pan-American Life Insurance Company, acting for himself and for said company, told one George W. Nott, who was dealing with petitioner, that petitioner was a faker, and was pulling off a "get rich quick game," and warned Nott to have nothing to do with him. That said Simmons made the same statements to one Robert H. Downman.

That one Robert A. Hopkins, secretary of the said association, acting for himself and on behalf of the said Life Underwriters' Association, stated to A. L. La Combe, manager of the Manhattan Life Insurance Company, that petitioner was a crook, and was pulling off a fake proposition.

That one Joseph Collins, president of the Underwriters' Association, and agent of the New York Life Insurance Company, stated to one Pendleton over the telephone that the plan suggested by petitioner for the adjustment of the insurance policies was a fake, and that petitioner's advice was dishonest, and was intended to profit petitioner while injuring said Pendleton; as a result said Pendleton refused to deal further with petitioner.

It appears further from the allegations of the petition that the plaintiff had for many years devoted himself to the study of life insurance and of contracts and policies made and issued by life insurance companies, and had thereby become highly competent to solicit life insurance and to advise holders of life insurance policies regarding their rights under their policies; that under the policies issued by the companies doing business in this state, and named in the petition, the holders are granted various rights to be claimed at their option, and that it frequently happens by exercising such rights that insured persons are enabled to obtain valuable advantages by obtaining an equal amount of insurance at less cost, or increasing the amount of insurance at the same or less cost, or by recovering a part of the premiums previously paid, and at the same time increasing the insurance value of their policies at the same or less cost.

It is alleged that the provisions of the policies in which such options are granted are expressed in technical language, so that the ordinary man without the advice of an expert, such as petitioner is, remains in ignorance of his rights, and because of such ignorance does not avail himself thereof; that it is to the interest of the insurance companies that their policy holders should be prevented from obtaining such advice and should be kept in ignorance of their rights; that it is also to the interest of the solicitors and agents of said insurance companies to keep the policy holders in ignorance of their rights, because such agents lose their commissions on the renewal premiums.

The plaintiff in the early part of 1921 secured the agency to represent the Manhattan Life Insurance Company, the Penn Mutual Life Insurance Company, and the Travelers' Insurance Company in this state, and obtained the proper license from the secretary of state. The contracts of the plaintiff with the said companies were canceled by the said companies within a few months after they were made, and it is charged by the plaintiff that the cancellation was made at the instance of the defendant companies and their agents as a result of the resolutions and publications herein previously copied, and was for the purpose of preventing petitioner from practicing his profession as life insurance solicitor and advisor, to destroy the business which he had built up, and further to keep the policy holders from being advised of their rights under their policies, and from claiming the benefits thereof.

The first question in logical order is whether under the facts alleged in the petition the defendants can all be joined in one suit. In this connection it may be stated as an accepted rule of law and jurisprudence that two or more persons cannot be grouped together and joined in one suit either as plaintiffs or defendants, where there is no privity of contract or mutuality of interest.

In Mavor v. Armant, 14 La.Ann. 181, it was said that the law does not permit a creditor to sue all of his debtors in the same action, unless there is a joint liability or privity of contract or interest which authorizes the joinder.

And in Dyas & Co. v. Dinkgrave, 15 La.Ann. 502, 77 Am. Dec....