Waite v. Holmes , 133 Mont. 512 ( 1958 )

MR. JUSTICE ANGSTMAN:

(dissenting).

I do not agree with the foregoing opinion. I concede that a licensed insurance agent has no franchise or property right which may be protected against injury or destruction by competition within the rule stated and followed in Tennessee Electric Power Co., v. Tennessee Valley Authority, 306 U.S. 118, 59 S. Ct. 366, 83 L. Ed. 543.

I think there is a vast difference however between “lawful” competition and “unlawful” competition which is the matter complained of here by plaintiff.

When plaintiff was licensed as an insurance agent he obtained rights and privileges.

As the court stated in State v. Loucks, 30 Wyo. 485, 222 Pac. 37, 39, when speaking of a licensed insurance agent, “The relator had some right under the license. Though it may be granted that it was not property, it was nevertheless of value to him and could not be arbitrarily taken from him any more than his real or personal property could be so taken. Dent v. [State of] West Virginia, 129 U.S. 114, 9 S. Ct. 231, 32 L. Ed. 623.”

I think he has a sufficient right to institute and prosecute proceedings to prevent another from masquerading as a licensed insurance agent when in fact his license was and is unauthorized and void as alleged here. Of course, I do not say that the license of defendant corporation is in fact void as unauthorized under the law but that is the charge made in the complaint and for the purpose of this proceeding we must assume that the allegations made are true.

I do not believe the statement relied on in the majority opinion contained in Restatement, Torts section 710, page 527, has any application here. That statement in substance is that the unlicensed agent is liable to the licensed one under the conditions there stated, on of which prescribed as a condition that the purpose of the licensing statute is “to protect * * * against unauthorized competition. ’ ’

That statement does not come into play here because plaintiff does not contend that he has a right to recover damages for injury to his business.

The fact that he recognizes that he has no cause of action for damages is the very reason why he is proceeding against the state auditor to have the unlawful license issued to the defendant corporation revoked.

Furthermore if we assume that the statement from the Restatement, section 710, relied on in the majority opinion has application here, I think that by necessary implication our Legislature intended by the licensing statute to protect a drdy licensed insurance agent against unauthorized competition. I think our Legislature in legal effect promised to those holding a duly issued license as an insurance agent that unlicensed agents would not be tolerated in the same field and that licenses would be issued to those only who possess the requisite qualifications.

I think plaintiff has a sufficient interest and right to seek its protection by the courts against unauthorized and illegal competition as is here sought. Compare North Arlington National Bank v. Kearny Federal Savings & Loan Ass’n, 3 Cir., 1951, 187 F. (2d) 564, certiorari denied 342 U.S. 816, 72 S. Ct. 30, 96 L. Ed. 617.

I think the judgment should be reversed.