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Equitable Life Assur. Soc. of United States v. Commonwealth.

it is a denial of the free right of trade and traffic, and therefore an abridgment of that right of liberty and property guarantied by the Constitution; (b) that it prevents competition. This court, in Com. v. Equitable Life Issur. Soc., 100 KY., 341 (18 R., 778) (38 S. W., 491), had under consideration a petition to recover a penalty denounced in section 656. Yo question seems to have been raised in that case as to the constitutionality of the law. The court recognized that the Commonwealth had the right to recover the penalty named in the section. In the case of Com, v. Long (17 R., 207) (30 S. W., 628), the court had under consideration a proceeding under section 656. It recognized the validity of the statute by adjudging what court had jurisdiction of the proceeding to recover the penalty, although the constitutionality of the act was not questioned in that case. The Legislature must be credited with the design, in the enactment of the statute under consideration, to benefit the public. Wise and prudent business men not only regard that there is an obligation on them to support and care for their families during their lives, but that it is provident and wise to protect them against want by life insurance. Of course, life is of uncertain duration. Policies of life insurance may run for 40 or 50 year's or more, and those who buy them are deeply interested in havmg their policies issued in a solvent company. Every one who takes out a life instirance policy is interested in the solvency of the company. It is important that the business of the company should be sucressfully conducted, and that it should at the end of a long period be able, by collecting sufficient premiums to meet the demands of the beneficiaries in the policies. The General Issembly evidently thought that it was wise to prevent insurance companies and their agents from engaging in a cut-rate business, and thus avoid

Equitable Life Assur. Soc. of United States v. Commonwealth.

the dangers that might follow from the collection of insufficient amounts from the policy holders. These, perhaps, are the considerations which influenced the General Assem-. bly to enact the statute. Insurance companies are somewhat of a quasi public nature, and the law-making department so regarded them, because it established an insurance bureau to inquire into their condition, and see that certain laws enacted for the benefit of the public were enforced. The argument of counsel for the appellant is largely based upon what he believes to be an erroneous conception of the statute. The statute does not prevent competition of insurance companies in the matter of fixing the rates to be charged for policies of life or endowment insurance. It does not attempt to require or authorize insurance companies to make a uniform rate for persons of specific ages or classes of policies. The statute, in effect, declares that, when a company fixes a rate for the insurance of the same class and equal expectation of life, that rate shall be adhered to, without distinction or discrimination; that there shall be no special contract as to divi:lerds or benefits payable on the policy; that whatever contract of insurance is made between the parties shall be written in the policy; that no company or agent shall pay or allow, as an inducement to insurants, any rebate on premiums par able on the policy, or any special favor or advantage in. div. idends or other benefits, or any valuable consideration or inducement whatever not specified in the policy contract of insurance. It is assumed by counsel for appellant that under this section the premiums must be paid in moneycan not be paid in anything else. It is therefore argued that it is in restraint of trade; that it is an abridgment of that right of liberty and property guarantied by the Constitution. If counsel's conclusions as to the meaning of

Equitable Life Assur. Soc. of United States v. Commonwealth.

the section is correct, then the question which they discuss would arise. It is our opinion that the section does not bear the interpretation given it. Of course, the law requires that the contract between the parties shall be expressed in the policy Among other things, it shall show i he amount of premium to be paid; when payable; whether or not the beneficiary is to participate in the dividend; whether or not it is an endowment policy, etc. The section does not say that the premium shall be paid in money. There is nothing in the section which would prevent an insurance company from accepting from the insured property in par. ment of the premium. Suppose that the annual premium was to be $100 on the policy on the life of A. A. did not have the money, but had a horse of the value of $100, and the insurance company desired to buy it, and would accept it in payment of the $100, and did so. It would not incur the penalty denounced by the statute. It would not be issuing a policy to A. on more favorable terms than one to B., who was of the same age and equal expectation of life, who was required to pay the same amount in money. A. paid his premium by giving the company its equivalent in a horse. If there was a recitation in the policy that A. had paid his premium, it would not be untrue, nor would it fail to express the terms between the parties. The premium was as fully discharged by the delivery of the horse as it would have been by the payment of the money. The company had the right to employ Coleman to solicit business for it. It had the right to agree with him as to what his compensation should be. We are of the opinion that it is not a violation of the statute for the company to discharge its debt to Coleman by issuing a policy of insurance on his life, providing he is charged the same rate that is charged other insurants of the same age and equal expec.

Equitable Life Assur. Soc. of United States v. Commonwealth.

tation of life. It would not be a violation of the statute if the contract had not recited how the premium was paid. The demands of the statute are satisfied when the regular rate of premium is charged, and that rate, etc., is stated in the policy. If an insurance agent or company should pay more for property than a fair value in accepting it in the payment of premiums, or should agree to pay one more for his services than they were worth to solicit business for the company, and either was done with the design to give the insured a rebate on premiums, etc., it would be a violation of the statute. In a proper case these questions of fact can be submitted to a jury under appropriate instructions.

The Commonwealth has no right to make the defendant furnish evidence against itself in this case, any more than if it was a proceeding by indictment. All the defendant need do is to plead "Not guilty.” Then the Commonwealth must establish its case in the same manner as it would do if it was a proceeding under an indictment. This court so ruled in Louisville & N. R. Co. v. Com. The bill of exceptions does not show that any evidence was heard to establish the guilt of the defendant.

The judgment is reversed for proceedings consistent with this opinion.

Whole court sitting.

Birchett v. Bank of Shelbyville.

CASE 19-ACTION TO ENFORCE A MORTGAGE LIEX.-MARCH 20.

Birchett v. Bank of Shelbyville.

APPEAL FROM SHELBY CIRCUIT COURT.

JUDGMENT FOR PLAINTIFF AND DEFENDANT, MARIA B. BIRCHETT AP

AFFIRMED.

PEALS.

DEPOSITION—NOTICE-EVIDENCE TO BE INTRODUCED.

Held: Under act of May 17, 1886, regulating the introduction of

genuine writings as evidence for the purpose of comparison with a disputed writing, and providing that “a party proposing to introduce such writings must give reasonable notice of his intentions to the opposite party or his attorney, with reasonable opportunity to examine them before commencement of the trial," a notice to take depositions which stated that "certain writings” would be submitted to the witness for inspection and comparison was sufficient, though it did not state what the writings were which were to be submitted; the depositions being taken a sufficient length of time before the hearing to afford the opposing party and her counsel a reasonable opportunity to examine them before commencement of the trial.

BEARD & MARSHALL AND R. F. PEAK, ATTORNEYS FOR APPELLANT.

This suit is on a note for $4,000 secured by mortgage on the wife's real estate. The appellant, Maria B. Birchett is before the court on summons, her husband, Dr. J. G. Birchett, by warning order.

The note and mortgage purport to have been signed by appellant and her husband, and the mortgage purports to have been acknowledged before the deputy clerk of Shelby county.

The appellant, by her separate answer denies the execution of the note or mortgage, in short her answer was a plea of non est factum, and by an amended answer, alleged, that she knew nothing of the execution of the note or mortgage; that she never received any part of the consideration for which same was executed, and that some one had personated her in the acknowledgment before the clerk.

Upon these pleadings proof was taken and the case prepared for trial, and at the January term 1901, of the court, the appellee was permitted, over appellant's objection, to file an amended

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