Phenix Insurance Company v. Burdett

• Decision Date: 02 November 1887
• Docket Number: 13,004
• Citation: 13 N.E. 705,112 Ind. 204
• Parties: The Phenix Insurance Company v. Burdett
• Court: Indiana Supreme Court

13 N.E. 705

112 Ind. 204

The Phenix Insurance Company v. Burdett

No. 13,004

Supreme Court of Indiana

November 2, 1887

From the Fountain Circuit Court.

Judgment affirmed.

J McCabe and E. F. McCabe, for appellant.

OPINION

Elliott, J.

There is but one question presented by this record. That question is, however, an important one, as it involves, in a general way, the validity of our statutes governing foreign insurance corporations, and especially the fourth section of the act of December 21st, 1865.

It may now be regarded as settled that a State Legislature has authority to prescribe the terms upon which foreign insurance companies may transact business within the State. In Paul v. Virginia, 8 Wall. 168, 19 L.Ed 357, the court in discussing the general subject said, with reference to insurance corporations: "Having no absolute right of recognition in other States, but depending for such recognition and the enforcement of its contracts upon their assent, it follows, as a matter of course, that such assent may be granted upon such terms and conditions as those States may think proper to impose. They may exclude the foreign corporation entirely; they may restrict its business to particular localities, or they may exact such security for the performance of its contracts with their citizens as in their judgment will best promote the public interest."

In Ducat v. Chicago, 10 Wall. 410, 19 L.Ed. 972, and Doyle v. Continental Ins. Co., 94 U.S. 535, 24 L.Ed. 148, this doctrine is reaffirmed. It had, indeed, been long before explicitly asserted. LaFayette Ins. Co. v. French, 18 HOW 404, 15 L.Ed. 451. In three, at least, of the State courts this principle has been asserted and held to sustain what are commonly called the retaliatory laws. Goldsmith v. Home Ins. Co., 62 Ga. 379; Phoenix Ins. Co. v. Welch, 29 Kan. 672; People v. Fire Ass'n, 92 N.Y. 311 (44 Am. Rep. 380).

In many other cases the laws have been assumed to be valid without discussion. Insurance Co. v. Brim, 111 Ind. 281, 12 N.E. 315; Granite State, etc., Ass'n v. Porter, 58 Vt. 581, 3 A. 545; Ohio v. Moore, 39 Ohio St. 486; State v. New York L. Ins. Co., 81 Mo. 89; State v. Farmers' Ins. Co., 15 Ins. L. J. 381; Ehrman v. Teutonia Ins. Co., 1 McCrary C. C. 126; Mutual Benefit L. Ins. Co. v. Bales, 92 Pa. 352.

There can, therefore, be no question as to the general right of the Legislature to impose restrictions upon foreign insurance companies, and the only question here is as to the validity of the particular restriction contained in the act of December, 1865. The section of which we are speaking reads thus: "Whenever any loss shall occur of any property insured by any company authorized to take risks under this act, it shall be the duty of the agent by whom the insurance was made, to retain in his possession all moneys belonging to such company, which may then be or may thereafter come into his possession, until such loss is adjusted and paid: Provided, That if suit shall be commenced by the party insured, against such company, the agent may deposit in court double the amount mentioned in the policy, to abide the event of the suit; or if the party insured shall not commence suit within ninety days after the agent shall have given written notice to such party that the loss will not be paid, the agent may thereafter pay over to persons entitled, the moneys of said company; and if any person insured by such company, meeting with a loss, shall notify any other agent of such company thereof, it shall be the duty of such agent to retain all moneys belonging to such company, which may then be, or may thereafter come into his possession, as hereinbefore required of the agent with whom the insurance was effected." Section 3768, R. S. 1881.

With the question of the expediency or policy of this statute, the courts have nothing to do; that is, as has been again and again decided, purely a legislative question. Eastman v. State, 109 Ind. 278, 10 N.E. 97. The statute must stand, unless it is plainly in conflict with some...