Fikes v. State

Insurance. Regulation. Laws 1902, ch. 59, p. 62. Criminal law. Evidence. Affidavit. Under Laws 1902, ch. 59, p. 62, regulating insurance companies, etc.: (a) A foreign, association executing contracts agreeing, in consideration of weekly dues, to pay its members a stipulated sum during illness and a certain other sum to a designated beneficiary to be expended in burying the member when dead, is an insurance company; and (b) The issuance of a permit to such company by the insurance commissioner is a condition precedent to the exercise of any powers by an agent of such company; and (c) It is competent on the prosecution of an agent of such company for violating the statute to show that it was not authorized to do business in this state, and the same may be shown by the testimony of the insurance commissioner and a certified copy of the records of his office; but id) An affidavit charging in general terms that defendant “did unlawfully assume to act as an insurance agent” is fatally defective for failure to specify the particular unlawful act sought to be charged.

From the circuit court of Lauderdale county. Hon. Robert F. Oochran, Judge. Fikes, tbe appellant, was charged before and convicted by a justice of tbe peace upon an affidavit which charged that he “did unlawfully assume to act as insurance agent — to wit, as agent for the Union Mutual 'Aid Association of Mobile, Alabama— without license therefor, as provided and required by Laws 1902, ch. 59.” A demurrer was filed to the affidavit by the defendant when the case reached the circuit court on his appeal, which demurrer raised the question whether the affidavit contained a sufficient description of the offense. The demurrer was overruled, and the case went to the jury on the evidence and a plea of not guilty. The defense was that the association for which defendant was soliciting insurance did not come within the meaning of the statute, being neither a life insurance company proper nor a fraternal order, and therefore not engaged in a business which it is the duty of the insurance commissioner to regulate, and that a license or permit from the insurance commissioner was unnecessary to enable an agent to solicit for the association, which simply agreed and undertook, in consideration of the payment by each member of weekly dues, to provide its members with a sick benefit and a burial benefit in case of death. Laws 1902, ch. 59, sec. 10,jp. 65, is as follows: “All indemnity or guarantee companies, all insurance companies, corporations, associations, and fraternal orders doing an insurance business, whether domestic or organized under the laws of other states or governments, transacting or to be admitted to transact business in this state, shall be placed under this department and shall be subject to the inspection and supervision of the commissioner.” Fikes was again convicted in the circuit court, and appealed to the supreme court. All of the material facts about which the defendant was entitled to be informed are entirely omitted from the affidavit, and he is left entirely to conjecture as to what offense he is charged with having committed and of the facts constituting his offense. The affidavit amounts to no more in its allegations than simple conclusions of law, and ive feel that no citation of authority is necessary on the point that in order to sufficiently charge a statutory offense, under a statute like the one under consideration, it is necessary to set forth the facts and circumstances which go to make up the offense, and it is not sufficient to charge the offense in the language of the statute alone. Lewis v. State, 49 Miss., 354; Deé v. State, 68 Miss., 601; Sullivan v. State, 67 Miss., 346; Rawls v. State, 70 Miss., 739; Bcurdwell v. State, 72 Miss., 535 ; Roberts v. Slate, 72 Miss., 110. The testimony failed to show (1) that the Union Mutual Aid Association of Mobile, Alabama, was an insurance company; (2) that, if it did appear from the testimony that said association is an insurance company, there was no allegation in the affidavit to that effect, and the testimony on this point would, for that reason, be incompetent and should not have been received; and (3) that, assuming the first and second propositions to be true and to have been properly proven, the testimony failed to show that Fikes was an agent of said insurance company by any act or thing done by him in pursuance of such agency. The testimony for the state failed to show that there was any such organization, association, company, or corporation in existence in Mobile, Alabama, or anywhere else. Assuming that there is such a thing as the Union Mutual Aid Association, that through its agents it receives weekly payments for membership dues therein, and that Fikes represented the association- — stripped of all circumlocution, what have we? Simply an association, agreeing, in the case of the death of a member, to pay a burial benefit of $30.00, and in case of sickness of the member, to pay a weekly sick benefit of $5.00. Is such contract a contract of insurance, within the meaning of Laws 1902, ch. 59 ? Said act specifically mentions fire, life, plate-glass, marine, accident, and other classes of insurance and insurance companies, and also deals with fraternal orders, but nowhere do we find any provision relating to burial associations or sick-benefit associations. No license fees are provided for such associations; and, indeed, it seems that the legislature omitted to make any provision whatever for the superintendence or control of tíds class of business by the insurance department. Under the terms of the certificate introduced in evidence, it is impossible to make more out of tbe Union Mutual Aid Association than an association engaged simply in tbe business of providing a sick benefit and a burial benefit. Looking to tbe provision of said act of 1902, we ask, Wbat license fee would tbe insurance commissioner be authorized to accept from sucb an association ? Wbat certificate would be be authorized to issue to sucb an association for' authority to engage in business in tbe state of Mississippi? After assuming tbe existence of tbe Union Mutual Aid Association, that it was engaged in business in Mississippi, and that Fikes was its .agent, still no violation of law was shown in this case. • It appears from tbe general purposes of tbe law creating tbe insurance- department that tbe insurance commissioner was to be given’jurisdiction over every form of insurance. If there is no provision in tbe law for tbe admission of a company doing a particular kind of insurance business, then sucb company cannot do business in this state. Tbe purpose of tbe legislature could be easily defeated if an insurance company could avoid supervision by transacting its business in ways not provided for by law. It was tbe purpose in tbe creation of tbe department to make insurance safe for people who do not make careful investigation before paying premiums, and to allow no concern to do business in this state whose methods of business are not considered safe. It was not intended to regulate certain kinds of insurance and leave other kinds free. Especially was it intended to prohibit business by concerns which collect dues from their members, have no representative form of government, are conducted for tbe benefit of certain officers who may have organized the companies and are at tbe bead of them, have no capital stock and no certainty of continued existence. Sucb concerns live a short while, collecting, in the' meantime, small assessments from numerous certificate holders, and then fail — go to pieces. It is against such insurance businesses the law intended to protect the people. The Union Mutual Aid Association is an aggravated example. It is a one-man concern, is conducted for the profit of the officers; has no capital stock, no representative form of government, and no certainty of continued existence. This appellant did not have the license required of every person who acts as insurance agent. If he assumed to do the business of an agent without such license, he is guilty of crime, whatever his reason may be for not having a license. It makes no difference whether he intentionally failed to procure a license when he could have had it for the asking or whether it was impossible for him to procure a license by reason of the fact that his company had not been admitted and cannot be admitted to do business in this state. It will be observed that the affidavit employs the words of the statute. See Laws 1902, ch. 59, sec. 71. The general rule is that indictments which follow the statute are sufficient; but this, rule does not apply where there are, in the language of the statute, no sufficient words to define any offense. Finch v. State, 61 Miss., 161. In that ease the court discussed an indictment drawn upon a statute which declared it to be a crime to disturb the peace of another “by offensive conduct.” It was held that an indictment using these words, “offensive conduct,” was not sufficient when it did not go further and define the specific acts constituting the offensive conduct. One test applied by the courts is: Conceding that the averments contained in the indictment are true, is it still possible that the accused may be innocent of the offense intended to be defined by the statute ? If this question should be answered in the affirmative, then the indictment is not sufficient. State v. Bardwell, 72 Miss., 535. “Where the prohibited act does not clearly appear from the language employed, or where, under certain circumstances, one may lawfully do the thing forbidden by the literal meaning of the words of the .statute, it is not sufficient to indict by the use only of the statutory words. Under such circumstances, the indictment must charge, in apt language, the unlawful act, that the defendant may be advised of the nature and character of the offense with which he is charged.” Bullivan v. State, 67 Miss., 350; Rawls v. BioM, 70 Miss., 741; Dee v. State, 68 Miss., 601. In this state it is unlawful under any and all circumstances to assume to act as insurance agent without a license from the insurance commissioner. One cannot assume to act as insurance agent without a license and be innocent. Measured by the rule above stated, the affidavit is sufficient.