People v. Howard

• Decision Date: 27 February 1883
• Citation: 50 Mich. 239,15 N.W. 101
• Court: Michigan Supreme Court
• Parties: PEOPLE v. HOWARD.

15 N.W. 101

50 Mich. 239

PEOPLE v. HOWARD.

Supreme Court of Michigan

February 27, 1883

This court will not attempt to weigh the evidence and say whether the jury ought or not to have considered it sufficient to sustain a criminal charge; but if there is a total want of evidence upon any essential point, then it becomes a clear duty to sustain the exception taken to the verdict.

Upon an examination of the evidence in this case, held, that the evidence does tend to establish the charge that defendant was acting as the agent of an insurance company that had not complied with the laws of the state, and was liable.

An entire charge as given must be examined when excepted to. Its correctness cannot be tested by taking parts thereof.

Foreign insurance companies, however formed or created, associations corporations, partnerships, or individuals, cannot, directly or indirectly, take any fire risks or transact any business within this state unless authorized so to do by section 23 of the act of 1869; and where a company has not complied with this section its agents who attempt to represent it or aid in evading the laws are liable to prosecution under act 148 Laws 1881.

Exceptions from Kent.

J.J. Van Riper, for the people.

T.J O'Brien, for defendant and appellant.

MARSTON J.

This case comes up on exceptions after verdict and before judgment. The prosecution was commenced for an alleged violation of act 148 of the Session Laws of 1881, p. 140 being entitled "An act to prevent the soliciting or issuing of unauthorized fire or inland marine insurance policies in this state."

The first count in the information charges the respondent with being an agent and solicitor of the Western Manufacturers' Insurance Company of Chicago, Illinois, and that he did, as such agent and solicitor, unlawfully transact and solicit business within the state of Michigan for said company, and did unlawfully solicit and take the application of William Harrison--the said company not having procured authority according to the laws of this state. The second count charges the respondent with procuring insurance, and the third with unlawfully taking the application of Harrison & Co. Counsel for respondent admit it was proved that the insurance company referred to was and is a mutual insurance company, having no shares of capital stock; that it was incorporated by special charter granted by the general assembly of the state of Illinois; that neither the respondent nor the company had procured or received the certificate of authority required by said act of 1881. The several questions raised in the brief of counsel for respondent will be considered in their order.

1. It was not proved that the company was, when that policy was issued, or ever had been, doing business in the state of Michigan, nor that it had ever or in any way or manner transacted or solicited business within the state of Michigan, and that the evidence did not sustain the charge made against respondent in either of the counts in the information. The first part of the above proposition we may, for the purpose of the present case, fully admit; yet we do not see, nor has any attempt been made by counsel to point out, what favorable result to the respondent can follow therefrom. Should the company hereafter make an application for leave to do business in this state, if such leave could be granted at all, then under other provisions of the statute the above question might become material. As to whether the evidence introduced was sufficient to sustain the charge made, we need but say that if there was evidence tending to sustain the charge made in either of the counts, then this court will not attempt to weigh the same and say whether the jury ought or not to have considered it sufficient. In testing this question we are not required to take that which respondent relies upon and that which would tend against him, and from a comparison thereof determine which was the stronger and better, or, deducting the one from the other, say what if anything was left. This would be but a weighing of the evidence and was entirely within the province of the jury. Nor are we to take the evidence in the order, question and answer, in which it was given, but finding it where we may, and putting what was most favorable to the prosecution together, and discarding all other, can this court say it fairly tended to establish the charge made? If so, then the verdict of the jury in this court must be considered as final. If, however, we find a total want of evidence upon any essential point, then it becomes a clear duty to sustain the exceptions taken.

We might content ourselves with saying that the evidence did, in our opinion, tend to establish the charge, but owing to the importance of this case we will quote some portions of the evidence bearing upon this question. It is not clear from the evidence from what source the printed blank form of application was obtained by Harrison; it would seem to have been one in general use, not issued by this company. Mr. Harrison, the person to whom the policy of insurance was issued, examined and testified as follows:

Question. Do you know Mr. Howard, the defendant? Answer. I do; yes, sir. Q. How long have you known him? A. Well, I think about the first acquaintance I had with Mr. Howard was last January. I saw him before that. Q. What was his business with you last January? A. Well, as near as I can remember, he filled out a blank application. Q. What was the application? A. An application for insurance. Q. Whether or not upon that application any insurance was effected? A. It was. (The policy in question from this company.) Q. Where did that conversation occur? A. At my office. Q. Well, tell us what was said? A. Well, I could hardly tell what was said. The leading points, perhaps, were that I asked Mr. Howard the mode of operation of the company represented. Q. What companies did he represent? A. This one company there. Q. What was it? A. The Western Manufacturers' Mutual. Q. Go ahead. A. Mr. Howard answered my questions. I cannot remember what these questions were. Q. What was your question, the substance of it? A. Well, I was very much interested in the protection that that company gave to the insurer, and the amount it cost to insure. Q. What did he say as to the amount it cost to insure? A. About one -half per cent. That application was filled out, as near as I can recollect, at that time in January when Mr. Howard was in my office. Q. You say that this policy was issued to you in pursuance of that application? A. Yes, sir. Q. Do you recollect what became of the application after it was signed? A. My recollection is it was handed to Mr. Howard. Q. Was it for insurance in this same company. A. Yes, sir. Q. And this (policy) you received by mail shortly afterwards? A. Yes, sir. Q. Did you give any premium note? A. Yes, sir. Q. When was this given? A. That was given at the time of the application. Q. You signed it at the time you made the applications? A. Yes, sir. Q. And they drew on you for the cash premiums? A. For the cash premium; yes, sir.

Section 23 of the act of 1869, (1 Comp.Laws, � 2987,) which requires foreign companies to do certain acts, appoint agents, obtain authority, etc., defines whom the term "agent" shall include, as follows: "The term 'agent' or 'agents,' used in this section, shall include any acknowledged agent, surveyor, broker or any other person or persons who shall in any manner aid in transacting the insurance business of any insurance company not incorporated by the laws of this state."

In view of this provision, and of section 1 of act 148 of the Laws of 1881, we have no doubt whatever but that the evidence quoted did tend to establish the charge made.

Howard was not and had not been employed by Harrison as a clerk or otherwise, and they had not even a previous acquaintance. Howard went to Harrison's office in January, 1882, representing the Western Manufacturers' Insurance Company of Chicago. The conversation then had between these persons was in reference to insurance. Harrison asked Howard the mode of operation of this company which he represented. The desired information as to cost of insurance was given by Howard, who then...