Phœnix Ins. Co. v. Burdett

• Decision Date: 02 November 1887
• Citation: 13 N.E. 705,112 Ind. 204
• Parties: Phœnix Ins. Co. v. Burdett.
• Court: Indiana Supreme Court

112 Ind. 204

13 N.E. 705

Phœnix Ins. Co.

v.Burdett.

Supreme Court of Indiana.

November 2, 1887.

Appeal from circuit court, Fountain county; Jos. M. Rabb, Judge.

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

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 21, 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, 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 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, and Doyle v. Insurance Co., 94 U. S. 535, this doctrine is reaffirmed. It had, indeed, been long before explicitly asserted. La Fayette, etc., Co. v. French, 18 How. 404. 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. Insurance Co., 62 Ga. 379; Insurance Co. v. Welch, 29 Kan. 672; People v. Fire Ass'n, 92 N. Y. 311, 44 Amer. Rep. 380. In many other cases the laws have been assumed to be valid without discussion. Insurance Co. v. Brim, 111 Ind. 218, 12 N. E. Rep. 305; Granite State, etc., Co. v. Porter, 58 Vt. 581;3 Atl. Rep. 545;Ohio v. Moore, 39 Ohio St. 486;State v New York, etc., Co., 81 Mo. 89;State v. Insurance Co., 15 Ins. Law J. 381, 25 N. W. Rep. 81;Ehrman v. Teutonia Ins. Co., 1 McCrary, 126;Benefit Ins. Co. v. Bales, 92 Pa. St. 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 to any property insured by any company authorized to take risks under this act, it shall be the duty of the agent 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, the agent may deposit in court double the amount mentioned in the policy, to abide the event of the suit; or, if the party 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 said company, meeting with a loss, shall notify any other agent of such company thereof, it shall be the duty of the 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 such insurance was effected.”

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. Rep. 97. The statute must stand, unless it is plainly in conflict with some...