Black v. Security Mutual Life Ass'n , 54 L.R.A. 939 ( 1901 )

Wiswell, C. J.

Action of assumpsit upon an account annexed to the writ to recover commissions upon premiums paid by various persons to the defendant on policies of life insurance issued by it, the applications for which were solicited, received and forwarded to the defendant by the plaintiff, under a written contract between the plaintiff and the defendant, wherein the plaintiff was appointed an agent of the defendant “for the purpose of procuring and effecting applications for insurance,” and which provided for the compensation that was to be received by the plaintiff.

At the trial, the defendant, among other defenses, contended that some or all of the applications of these persons for insurance were solicited, received and forwarded to the defendant at a time when the plaintiff had. no license from the insurance commissioner of this state, as provided by R. S., c. 49, § 73, and subsequent amendments, and that consequently tbe plaintiff could not recover. Tbe case shows that the plaintiff bad no sucb license between July 1, and October 18, 1897.

Thereupon tbe defendant’s counsel requested tbe presiding justice to instruct tbe jury that the plaintiff could not recover any commission upon tbe premiums paid to tbe company in cases where tbe applications for sucb insurance were solicited by the plaintiff during tbe period that be was without sucb a license. Tbe requested instruction was applicable to the state of facts involved, because although tbe policies may have been in fact issued after October 18, 1897, and during a period when tbe plaintiff bad a license, it is clear that in more or less instances tbe plaintiff’s work in soliciting and receiving applications for tbe policies was performed during tbe period that be was without a license.

In order to give progress to tbe case, tbe presiding justice declined to give tbe requested instruction — but did instruct the jury, “that for any policy bearing date subsequent to tbe 18th of October, tbe plaintiff is entitled to bis commission from the company upon that risk, although be may have solicited the insurance before that time and made himself liable to tbe penalty.” To this refusal to instruct, and to tbe instruction given, tbe defendant, tbe verdict being for tbe plaintiff, took exception.

The statute above referred to, as last amended by c. 95 Public Laws of 1895, after providing that tbe commissioner may issue a license to any person to act as an agent of a domestic insurance company, and to any resident of tbe state to act as agent of any foreign insurance company, which has received a license as provided by another section, and after fixing tbe fee that shall be received by tbe commissioner for each license, contains this language, “and if any person solicits, receives or forwards any risk or application for insurance to any company, without first receiving such license, oil fraudulently assumes to be an agent and thus procures risks and receives money for premiums, be forfeits not more than fifty dollars for each offense; but any policy issued on such application binds tbe company if otherwise valid.”

Although this statute contains no express provision preventing a recovery for his services by one who acts as an agent of an insurance company without such license, and does not expressly provide that contracts for such services shall be void, it prohibits the performance of such services without the license referred to under the penalty therein provided. In Harding v. Hagar, 60 Maine, 340, a very similar case in principle, this court said in its opinion: “It is too well settled to require the citation of authorities, that no party can recover for acts or sérvices done in direct contravention of an express statute, or for property So sold and delivered.” In Randall v. Tuell, 89 Maine, 443, where the authorities are fully collected, the principle is thus stated: “It is the general doctrine now settled by the great weight of legal authority, that where a license is required for the protection of the public and to prevent improper persons from engaging in a particular business, and the license is not for revenue merely, a contract made by an unlicensed person in violation of the act is void.”

In accordance with these authorities, and many others that might be referred to, it must be held that the plaintiff cannot recover for the services performed by him in direct contravention of the statute. The purpose of the statute is undoubtedly for the protection of the public. It is clearly not for revenue. The license fee required was only the sum of two dollars. True, the statute referred to provides that a policy issued in such a case shall not thereby be void, but the contract of insurance is not the one under consideration here; it is the contract between the company and the plaintiff by virtue of which the latter performs services in obtaining applications for insurance, which the statute prohibits, unless the person performing such service has a license therefor.

The evidence as to when these applications for insurance were solicited and obtained by the plaintiff, is somewhat indefinite, but some of them were unquestionably received when the plaintiff had no license and the burden is upon him to show that he had a license when the services were performed. Harding v. Hager, supra.

Exceptions sustained.