Commonwealth v. Gaither , 107 Ky. 572 ( 1900 )

JUDGE BURNAM

delivered the opinion op the court.

Appellee was charged by the grand jury of McCracken •county with the offense of acting as agent of a foreign life insurance company, and as such soliciting and receiving an application for insurance on behalf of said company from one Gleason, without first procuring a license from the Insurance Commissioner to act as such agent. The trial resulted in a verdict and judgment of acquittal.

Appellee testified “that he was employed by one Greer to solicit insurance- for the United' States Benevolent Society of Saginaw, Mich., and that he solicited -an application from Gleason, wrote out the application himself on some blank -forms furnished him by Greer, and that after Gleason had signed the application he collected from him five dollars, the initiation fee, and delivered both the application and money to Greer, who mailed it to the society at Saginaw, Mich.; that at the time'1 he presented the application to Gleason he was not in the employ of the United States Benevolent Society of Saginaw, Mich., nor authorized by them to solicit insurance or aid in the transaction of their business; that he was employed solely by Greer to solicit for him, and that he did not deliver the policy issued by the association to Gleason.”

Upon the trial, the jury were told, in the fourth instruction given to them by the court, that, “in order for the defendant to have been the agent of the insurance company, said company must have appointed him such agent; and unless you 'shall believe from the evidence, beyond a reasonable doubt, said company had so appointed defendant its agent, or unless the company knew of the service he rendered at the request of Greer and ratified it, the law is for the defendant, and you will find him not guilty.”

This prosecution is based on section 633 of the ‘Kentucky Statutes, which is ais follows:

“Licenses to agents of foreign companies must be renewed annually in the same manner as original licenses, upon a finding by the commissioner that the company represented by the agent has fully complied with the law, and maintains its required capital and reserve; and whoever 'solicits and receives .application for insurance on behalf of any insurance company, or transmits for any person other than himself an application for insurance, or a policy of insurance to or from such company, or advertises that he will receive or transmit the same, or who shall, in any manner, directly or indirectly, aid or assist in transacting the insurance business of any insurance company, shall be held to be the agent of such company within the meaning of this article, anything in the policy or application notwithstanding; and any person acting as the agent of any company within the meaning of this section, without first procuring and having a license from the commissioner to act as such agent, or, after such license has expired, been suspended or revoked, or who shall procure any premium or obligation, therefor by fraudulent representations, shall be deemed and held to be guilty of a misdemeanor, and upon conviction of such offense, shall be fined not less than fifty not more than one hundred dollars for each offense.”

In this case, the United States Benevolent Society of Saginaw, Mich., had no authority to do business in this State, and appellee had received no license from the insurance Commissioner to- represent them as agent.

At the common law, an agent was one who undertook to transact some business for another by the authority and on account of the latter, and to render an account of it;' but the statute is much' broader in its terms and application, and holds- one to be an agent “who solicits and receives application for insurance on behalf of any insurance company, or who shall, in any manner, directly ■or indirectly, aid or assist in transmitting' the insurance business of any insurance company,'” whether he had been authorized to act as -such agent by the company or not. The object of the law is to protect citizens of this State from bankrupt and fraudulent insurance companies, as well as to secure the payment of some revenue from foreign insurance companies for the right to do business in this State, and the statute would be futile to effect these ends if unlicensed persons could solicit insurance and transact the business of the company as subagents-, and escape the penalty denounced by the statute because they bad not received their appointment directly from the com•pany.'-ei' uni'»p«.the company knew such services were rendered at the request of their authorized agent

The court erred in giving to the jury instruction No. 4. They should have been instructed in accordance with the term» of the statute, which clearly defines the acts which constitute tlio agency therein denounced.

For reasons indicated, the judgment is reversed, and cause remanded for proceedings consistent herewith.