Blackmon v. Gulf Life Insurance , 179 Ga. 343 ( 1934 )

Bell, J.

Contracts intended to defeat or lessen competition or to encourage monoply are illegal and void. Civil Code (1910), § 6466. While the burial policy issued by the defendant insurance company appears from the allegations to be a competitive instrument and to this extent might be favored by the law, yet as against a general demurrer the petition sufficiently alleged an intention on the part of the defendants to create a monopoly, and the actual creation by them of an illegal combination to drive the plaintiffs, and others in like circumstances, out of the undertaking business, and to secure for themselves entire control of such business in a specified territory, with the intended result that competition would be destroyed and the defendants enabled to set their own prices and to determine to their own interests the quality of the funeral to be furnished to the policyholder. Although an agreement may have the temporary effect of exciting competition, if its ultimate aim is to destroy competition and it may in fact have that tendency, it is void as being injurious to the public and against public policy. The vice is in the combination or agreement. State v. Central of Georgia Railway Co., 109 Ga. 716 (35 S. E. 37, 48 L. R. A. 381); Brown & Allen v. Jacobs’ Pharmacy Co., 118 Ga. 429 (41 S. E. 553, 57 L. R. A. 547, 90 Am. St. R. 126); Southern Ice & Coal Co. v. Atlantic Ice & Coal Cor., 143 Ga. 810 (85 S. E. 1021); Love v. Kozy Theatre Co., 193 Ky. 336 (236 S. W. 243, 26 A. L. R. 364).

The act of March 24, 1933 (Ga. L. 1933, p. 186), provides that “it shall be unlawful for any person, firm, or corporation engaged in life-insurance business or in the industrial life-insurance business to contract for or to receive any compensation or gratuity, directly or indirectly, on account of employment of any undertaker in connection with a burial or preparation for burial of any person whose life is insured by said company; and it shall also be unlawful for such undertaker to give or agree to give any such compensation or commission to such person, firm, or corporation engaged in the insurance business.” As against the general demurrer the petition sufficiently alleged a violation of this statute.

It appearing from the allegations that the plaintiffs were engaged respectively in the undertaking business and were suffering special injury from the alleged illegal combination and unlawful acts of the defendants, they were entitled to maintain the suit for injunction in their own names, without first seeking relief from the insurance commissioner, and without abiding the action of this or any other officer in behalf of the State. Civil Code (1910), § 4455; Employing Printers Club v. Doctor Blosser Co., 122 Ga. 509 (4) (50 S. E. 353, 69 L. R. A. 90, 106 Am. St. R. 137, 2 Ann. Cas. 694); 41 C. J. 186, § 195.

The petition stated a cause of action for some of the relief sought; and therefore it was error to sustain the general demurrer. Blaylock v. Hackel, 164-Ga. 257 (5) (138 S. E. 333).

Judgment reversed.

All the Justices concur, except Atkinson and Gilbert, JJ., who dissent.