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subject-matter. By direct implication one Clement v. New York Life Insurance Co., 101 modified the other.

Tenn. 22, 46 S. W. 561, 42 L. R. A. 249, 1st There is no such implication growing out of column, 70 Am. St. Rep. 650. the conditions of the policy before us for in The company reserved to itself the right terpretation.

during two years, upon discovering that the The rule laid down in Bock v. Perkins, 139 age had been understated, to adjust the U. S. 635, 11 Sup. Ct. 677, 35 L. Ed. 314, a amount of insurance according to insurance decision cited by plaintiff, was that effect companies' rules. Clement v. New York Life must be given to the intention of the parties Insurance Co., 101 Tenn. 22, 46 S. W. 501, as disclosed by the instrument to be con- 42 L. R. A. 247, 70 Am. St. Rep. 650. strued, a very plain and correct rule, and one After the two years had expired, the secthat commends itself always.

ond clause copied above becomes effective In Rodgers v. United States, 185 U. S. and the first clause is not enforceable. There83-85, 22 Sup. Ct. 582, 46 L. Ed. 816, also by effect is given to both clauses, otherwise cited by plaintiff, the court held that where the second clause is entirely neutralized, and there are two statutes, the earlier special becomes entirely ineffective in so far as reand later general, the presumption is that the lates to proof of age. special is an exception to the general in case That was not intended, as we read the of conflict between them.

policy. In the case in hand no such presumption

Under the textual article of Civ. Code, art. arises, as both clauses are equally general, 1951, if it can be avoided, a clause should not and neither is particularly special.

be declared nugatory. There is no reason to infer that there is 3. Misstatement of the Insured: anything to attract attention particularly in The discussions heretofore are not very the first clause more than there is in the important compared to the discussion at this second clause.

point. They do not finally dispose of the In Winnebrenner v. Forney, 189 U. S. 152, issues. 23 Sup. Ct. 590, 47 L. Ed. 754, it was sup

Life insurance is not made incontestable posed that the attention of the writer of the by statute in this state as it is in some of contract because of the importance of the the states. By the terms of the policy in the particular subject-matter should have been case under discussion, it is incontestable (by directed to the special clause.

special clause made) after two years. In the present case both clauses are of im The plaintiff urges that the insured misportance

stated her age. There is another rule of interpretation to

The defendant's contention is that the which we may as well refer at this time. first clause in the policy is of no effect, and

In matter of insurance the interpretation that, therefore, the misstatement is of no should be placed upon the writing of the com- importance. His contention is that the company in the policy which is most favorable to pany by the two years' clause is prevented the insured. Massachusetts Benefit Associa- from making any defense as relates to mistion v. Robinson, 104 Ga. 256, 30 S. E. 918, statement of age. 42 L. R. A. 272, second column.

If the lawmaking authority were to legalAnd, further, if the policy is susceptible ofize such a clause (that is the first clause two different constructions, the one most fa- copied above in regard to age), it would be vorable to the insured commends itself.

binding. 2. Effect of the Clause in Question:

The acceptance by the insured of this clause Both clauses, being general, are to be con- makes the contract as binding as would be a strued together, and effect given to the two. statute on the subject. Statute and contract

This can be done by holding that the com- would be equally binding. pany had ample time to make inquiry about

The company, in order to promote its busithe insured within the two years after the ness and increase its popularity, as an indate of the policy. If he has understated surer, inserted this clause in its policy and his age, the company may readjust the poli- offers it as an inducement to take insurance. cg contradictorily with the insured on the It uses it to the best advantage. basis of his age, as before stated in the state The parties to a contract can adopt a prement of facts, as a method to be followed in scriptive term. the readjustment of the policy.

But it is contended that a wrong has been It has been decided in another jurisdiction committed. that, if he has departed this life, the adjust True, but it is a public wrong, and, if the ment may be made contradictorily with the insured commits a public wrong, in this inlegal representative of his succession, not a stance it cannot avail the company. question involved here.

Very similar questions have been decided But after two years have elapsed defenses in the courts of other jurisdictions. are no longer available, unless the grounds In Vetter v. Mass. National Life Ass'n, 29 are excepted by the terms of the policy. App. Div. 72, 51 N. Y. Supp. 393, the policy

A short term of prescription has been cre- provided that, if fraudulent answers were ated by contract within which the insurer, given, the policy would be void.

The insured died over two years after the sand decreed that the judgment of the Court date of the policy.

of Appeal in this case is annulled, reversed, The insurance company offered to prove and avoided. It is further ordered, adjudgthe fraud, and offered to show that the an- ed, and decreed that the judgment of the disswers were false. Though these answers did trict court is hereby made the judgment of not relate to age, they were, it was charged, this court. It is further ordered, adjudged, false, and, if the charge was true, they would and decreed that the plaintiff pay the costs have rendered the policy void.

of both courts, and that this judgment, so The testimony was excluded by the court far as needful, be made executory by reon the ground that the incontestability of manding it to the district court. the policy concluded the company.

For reasons stated, it is further ordered, The decision cited, supra, is pertinent in adjudged, and decreed that the rule nisi two respects; that is, the one just stated, which was issued in this case be, and the and, further, in that the policy contained same is hereby, affirmed. the words, "except as herein set forth,” in the clause relating to the incontestability of the policy.

(125 La. 50) By the foregoing quoted words, there was

No. 17,600. a special exception as it referred to other HOWCOTT V. SMART, State and Parish Tax clauses of the policy.

Collector, et al. Yet in that case the court held that these (Supreme Court of Louisiana. Dec. 13, 1909. words did not refer to the warranty clauses Rehearing Denied Jan. 17, 1910.) (one of which had been violated or not com

On Motion to Dismiss. plied with), but that the words quoted referred to promissory obligations and duties 1. Courts (§_224*)—SUPREME COURTS-JURIS

DICTION-LEGALITY OF Tax. of the insured, such as the payment of pre Where the power of a police jury to levy miums, and not to what the court classed as taxes under a certain budget is challenged, the affirmative warranties.

legality of the taxes is in contestation, and the

Supreme Court has appellate jurisdiction. The decision goes further than there is

[Ed. Note.-For other cases, see Courts, Cent. any necessity of going in this case, for the Dig. 8 616; Dec. Dig. $ 224.*] policy in the case before us for decision does

On the Merits. not contain anything similar to the quoted 2. EvidENCE (8 82*)–PRESUMPTIONS_REGUwords.

LARITY OF JUDICIAL PROCEEDINGS. The issue before us, as between the com Judicial proceedings will be presumed to pany and the insured, is not the fraud which have been regular until the contrary be shown. is committed, but the incontestability of the Cent. Dig. $ 104; Dec. Dig. & '82.*)

[Ed. Note.-For other cases, see Evidence, clause which is binding upon the company.

3. TAXATION ($ 609*)-COLLECTION-INJUNOIt stands first and comes up under the terms

TION-REQUISITES. of the policy before any question of fraud

Injunctions against the collection of state can be raised.

and parish taxes are governed by the provi. In Massachusetts Life Benefit Ass'n v. 1899; and, where such an injunction was sued

sions of section 56, Act No. 170, p. 373, of Robinson, it was held that the clause is not out without previous notice to the tax collector against public policy as applied to the de- and without amount of bond as required by the fense of fraud. 25 Cyc. 873, second column. said statute, it was properly dissolved on the

face of the papers. If the gravity of a case of wrong were to

[Ed. Note.-For other cases, see Taxation, offer ground after the two years for defense, Cent. Dig. 8 1243; Dec. Dig. $ 609.*] there would be degrees of fraud.

4. TAXATION (8611*) COLLECTION REThe case just cited refers to and includes

STRAINT-ATTORNEY FEES. all frauds, and thereby holds the company

The statutory attorney fees and penalties just as it has bound itself.

provided by section 56, Act No. 170, p. 373, of

1898, on the dissolution of injunction restrain5. Beneficiary Proof :

ing the collection of taxes, are recoverable on The beneficiary joined in making proof of parish as well as state taxes. death of the insured. He suppressed the [Ed. Note. For other cases, see Taxation, truth and committed a wrong, which no one Dec. Dig. $ 611.*] well inclined countenances for an instant. (Syllabus by the Court.) But it remains that the policy itself is bind- 5. APPEAL AND ERROR ($ 170*) REVIEW ing. His representations, untrue as they


LOWER COURT. were, had no bearing on the right claimed.

The constitutionality of a statute cannot As untrue as the representation was, it can be considered on appeal where not raised in the not be considered as giving a right to forfeit lower court. the claim under the policy.

[Ed. Note. For other cases, see Appeal and The declaration did not affect the subject- Error, Cent. Dig. & 1037; Dec. Dig. $ 170.* i matter of the contract. However false it Appeal from Twenty-Fifth Judicial Dis. was, the representation was one that affordstrict Court, Parish of Livingston; Robert S. no ground of defense to the plaintiff.

Ellis, Judge. For reasons stated, it is ordered, adjudged, Action by Miss Edith Howcott against W.

L. Smart, state and parish tax collector, Liv-, the state as to the lawfulness of the tax levingston parish, La., and others. Judgment ied in behalf of the sovereign. But, as befor defendants, and plaintiff appeals. Af-tween the plaintiff and the parish, the taxes firmed.

levied by the police jury are assailed as IlleHall & Monroe, G. R. Westfeldt, Jr., and gal, null, and void because exceeding by Monte M. Lemann, for appellant.

Walter twofold the total amount of the budget Guion, Atty. Gen., W. H. McClendon, Dist. adopted by the police jury as the basis for Atty. (R. G. Pleasant, of counsel), for appel- taxation. The question thus raised goes to lees.

the power to tax, and therefore the legality

of the tax is in contestation, and this court LAND, J. This is a suit to enjoin the col- bas jurisdiction. Parish of Lincoln v. Huey,

30 La. Ann. 1244; Police Jury v. Bouanchaud lection of state and parish taxes levied on an alleged illegal assessment and on an al- & Co., 51 La. Ann. 860, 25 South. 653; State leged illegal budget of the police jury of the ex rel. Hutchinson v. Tax Collector, 52 La. parish of Livingston, and to have the said Ann. 1620, 28 South. 157. The injunction is levy and assessment declared null and void. involved in the question of parish taxes as The suit was directed against the tax cold well as that of state taxes.

The motion to dismiss is therefore overlector for the state and parish and against

ruled. the police jury as the representative of the parish. A preliminary injunction was grant

On the Merits. ed by the clerk of the district court, in the

One of the main contentions of the appelabsence of the judge, on bond for $500 condi- lant is that her injunction was dissolved ex tioned as the law directs. The tax collector parte and without notice. The facts are that was served with the writ and citation on January 30, 1909, and on the same day a ci that the motion was filed on the fifth day of

all the proceedings were had in open court; tation addressed to Pearly R. Erwin, presi- the session, and was called up and tried on dent police jury, was served on that officer. the seventh day of the session; and that

The district court convened on April 14, judgment was rendered on the thirteenth day 1909, pursuant to adjournment. On April 19, 1909, leave was granted in open court to of the session. Plaintiff's attorney was presthe district attorney to file a motion to dis- ent in court on the day the judgment was solve the injunction on the face of the pa- but took an appeal. The presumption is that

rendered, and did not move for a new trial, pers, and the motion was filed on the same day. On April 20, 1909, leave was granted to the motion was properly called for trial, and

It is the district attorney to file exceptions to the that the proceedings were regular. petition, and exceptions were filed on the elementary that “judicial action is presumed

regular.” 1 Rice on Evidence, § 38. Judicial same day.

On April 21, 1909, one week from the day proceedings are presumed to be regular until of the convening of the court, the minutes the contrary be shown. 1 Hennen's Digest, show that the following proceedings were

p. 489, No. 2. Trials of motions and excephad:

tions are regulated by the rules of the respec“This day the motion to dissolve the injunc that the motion in question was called for

tive courts, and there is nothing to show tion was called up. Mover being represented by W. H. McClendon, district attorney, and plain. trial in violation of the rules of practice in tiff being absent. After argument of mover in the court below. The Code of Practice does action, the matter was submitted to the court, not require service of notice in such cases, and the court took the matter under advise- and such a practice is unknown in the counment."

try parishes. On April 27, 1909, the court sustained the

The motion to dissolve sets up the insufimotion and rendered judgment against the ciency of the bond for injunction and the ilplaintiff dissolving the injunction, with 10 legality of the order for the writ under the per cent. attorney fees, statutory interest, provisions of section 56, Act No. 170, p. 373, and costs.

of 1898. The last paragraph of said section On the same day the plaintiff by motion in reads as follows: open court took an appeal from the judg. ment, returnable to the Supreme Court, and

No injunction restraining the collection of

any tax or taxes shall be issued by any court perfected the same by giving bond.

unless a bond shall first be given by the taxpay.

er enjoining, with good security for an amount Motion to Dismiss.

equal to that of all taxes, interest, penalties and

costs of the amount of taxes coutested, and fifBoth appellees have moved to dismiss the ty per cent additional thereon included, and no appeal on the ground that this court is with injunction shall issue except to enjoin the colout appellate jurisdiction ratione materiæ lection of that portion of the tax which may be in the premises, and that the question of the the collection of that part or portion in contest

in contest, and no injunction shall issue against constitutionality or illegality of the taxes is until the taxpayer shall have produced and filed not involved.

the tax collector's receipt showing that the taxThe amount in dispute is below our appel- payer has paid that portion of the tax which is late jurisdiction, and there does not seem to edged to be due.

not in contest, and which the taxpayer acknowl.

No injunction against the colbe any question between the plaintiff and lection of taxes or any part or portion thereof

shall issue except after the issuance of a rule

(125 La. 55) nisi, to be served on the tax collector, returnable in three days. Said rule shall be tried on

No. 17,921. the fourth day after service, summarily by pref- STATE ex rel. PEOPLE'S FIRD INS. CO. erence, and the injunction shall only issue aft

OF NEW ORLEANS. v. MICHEL, er judgment making the rule absolute, and then only for such portion or part of the tax in con

Secretary of State. testation as hereinbefore provided."

(Supreme Court of Louisiana. Nov. 29, 1909.

Rehearing Denied Jan. 17, 1910.) As the total taxes enjoined amount to $926.28, it is evident that a bond for $500 1. REQUIREMENTS AS TO INSURANCE Com

PANIES. was insufficient, and, as the order for the in

Insurance companies organized on the stock junction issued ex parte without any rule plan are required, under section 3 of Act No. on the tax collector, its illegality is patent. 105, p. 132, of 1898, as amended by Act No. It is argued, however, by counsel for the 50, p. 69, of 1902, to have a subscribed capital

stock of at least $100,000, all of which must appellant that the paragraph Just quoted be paid for in cash within 12 months of the date does not apply to parish taxes. There is no of the charter, under penalty of the revocation force in this contention. The last paragraph of the licenses to do business and of the forof section 30 of the statute reads as follows: feiture of the charter of the offending company.

2. INSURANCE (8 33*) — STOCK COMPANIES — "That the state and parish taxes shall be ex PAID-IN STOCK-STATUTORY REQUIREMENTS. tended upon each of the copies of the roll to be A fire insurance company incorporated undelivered to the recorder and to the tax col- der the said section, with an authorized capital lector."

stock of $100,000, one-fourth of which has never

been paid in cash, but is represented by the And subsequent sections provide for the notes of subscribers, has no standing as a cor collection of parish taxes in the same man- poration to do business, or to enjoin the Secre

tary of State from revoking its license. Der as state taxes. Section 56 in terms cov.

[Ed. Note. For other cases, see Insurance, ers all “suits relating to taxes," and the last Dec. Dig. $ 33.* ] paragraph provides that “no injunction re- 3. CONSTITUTIONAL LAW (8 43*) PERSONS straining the collection of any tax or taxes ENTITLED TO RAISE CONSTITUTIONAL QUESshall be issued," except under certain condi TIONS-RIGHT OF INSURANCE COMPANY TO tions.


PORATED. The suggestion in argument that the said

A fire insurance company incorporated unparagraph is unconstitutional cannot be con- der the section aforesaid has no standing to atsidered, because no such plea was made be- tack as unconstitutional the law under which it low.

claims to exist as a corporation, and, if it has

not been organized as required by the statute, The last contention of the appellant is that it has no standing to complain of alleged unconthe court below erred in allowing damages, stitutional discriminations in favor of other and the case of Railway Company v. Sher classes of insurance companies. iff & Tax Collector, 50 La. Ann. 1034, 23 al Law, Cent. Dig. $ 41; Dec. Dig. $ 43.*]

[Ed. Note.-For other cases, see Constitution- . South. 946, is cited. In that case the plain

4. APPEAL AND ERROR (8 170*) REVIEWtiff's suit was dismissed on exception of no

QUESTIONS Not RAISED IN LOWER COURT. cause of action, and as an incident the in

Questions of unconstitutionality, not pleadjunction was dissolved. The court distin- ed below, will not be considered on appeal. guished the case from that of an injunction [Ed. Note.-For other cases, see Appeal and dissolved on rule, and therefore held that Error, Cent. Dig. 88 1037, 1038; Dec. Dig. $

170.*] the statutory penalty did not apply, but at the same time reserved the right of the de

(Syllabus by the Court.) fendant to claim damages in some other pro

Appeal from Twenty-Second Judicial Disceeding.

trict Court, Parish of East Baton Rouge; The case of Orient Insurance Company v. H. F. Brunot, Judge. Board of Assessors, 50 South. 778, 124 La.

Mandamus by the State, on the relation of 872, is cited as authority for the proposition the People's Fire Insurance Company of New that the statutory damages are confined to Orleans, against John T. Michel, Secretary state taxes.

of State, Judgment for defendant, and reThis point was not considered in the opin- lator appeals. Affirmed. lon handed down in that case. There was no dispute as to the statutory penalty.

Meyer S. Dreifus and A. C. O'Donnell, for The penalty of 10 per cent. is upon the appellant. Walter Guion, Atty. Gen., Eugene "aggregate amounts of taxes and penalties” J. McGivney, and R. G. Pleasant, for appellee. to be collected, and for the reasons already stated the law makes no distinction between LAND, J. Act No. 105, p. 132, of 1898, state taxes and parish taxes in the matter of provided for the organization and operation their collection.

of state insurance companies of all kinds. It is therefore ordered that the judgment By section 3 companies formed upon the be affirmed in so far as this court has juris- stock plan, for fire insurance, were required diction in the premises, and that the costs of to have a paid-up cash capital of not less appeal be paid by the appellant.

than $200,000. Section 5 provided that the

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capital stock of any stock Insurance com The Secretary of State answered that repany thereafter organized shall be paid in lator had not complied with the requirements cash within 12 months from the date of its of the statutes, and that it was the mandacharter, and no certificates of full shares and tory duty of the respondent to revoke its lino policies shall be issued until the whole cense to do business in the state. capital is paid in. Under this system no There was judgment in favor of the de company could obtain a certificate from the fendant, and the relator has appealed. Secretary of State authorizing it to issue The petitioner admits that the whole of its policies and make contracts of insurance ex- capital stock has not been paid in, as requircept on the sworn statement of a majority ed by Act No. 105 of 1898, and Act No. 50 of of the directors that all the capital stock 1902, but relator alleges that such requirehad been paid by the shareholders.

ment is unconstitutional on several grounds. By Act No. 50, p. 69, of 1902, section 3 of The first ground is that such requirement Act 105 of 1898 was so amended as to reduce or restriction is not set forth in the title of the minimum capital stock required of fire the statutes. insurance companies to $100,000, and a new The title of Act No. 105 of 1898 is most paragraph was added, as follows, to wit: comprehensive, covering more than a page

"That the capital stock of all such corpora- of printed matter. The general object of the tions shall be subscribed and paid for in cash, statute is set forth as follows: within twelve months from the date of its charter, and no certificates of stock shall be issued

"In relation to the organization and operation until paid for in full, and no policies of insur- of state insurance companies, and of insurance ance shall be issued by said corporations, or busic companies organized under the laws of other ness done by them until thirty-five per cent. of states or countries.” the entire capital shall be paid for in cash; and

And the title embraces, among other reif the whole of said capital stock shall not be paid for in twelve months from the date of the citals, the following: charter, it shall be the duty of the Secretary of State to immediately revoke the license granted igation or transportation or marine insurance,

"To regulate generally fire, river, inland navor issued to any such corporation to do business how local mutual and stock companies may be in this state and publish notice of such revoca- formed, the provisions to be included in their tion as required by law, the charter of the of-charter, amount of capital stock required, fending corporation shall be forfeited, and all duties of Secretary of State," etc., etc. contracts of insurance entered into after the revocation of such license shall be pull and void." Act No. 50 of 1902 amended and re-enacted

Section 5 was amended so as to permit sections 1, 3, 5, and 7 of Act No. 105 of 1898, such companies to issue policies and transact giving the title of the latter in full. It was business when 35 per cent. of the entire cap- in the title a synopsis of all the provisions

not necessary for the lawmaker to set forth ital had been paid for in cash.

The People's Fire Insurance Company was of the statute. It sufficed to state the genincorporated on April 2, 1907, under the eral object or purpose of the proposed legislaws “relative to the organization and opera

lation, tion of state insurance companies in particu

The relator was organized under the prolar," with an authorized capital stock of visions of the amendatory act of 1902. It is $100,000. The total amount was subscribed, not legally possible for relator to claim the and, after $35,000 had been paid in, the com- benefits of the statute and at the same time pany obtained a certificate from the Secre- to ignore the express conditions attached to tary of State authorizing the corporation to the grant of its franchise. If the conditions issue policies and transact business under be unconstitutional, the whole enactment is its charter. The company began business on null and void, because the grant and the conJuly 26, 1907.

ditions are inseparable. It is conceded that the capital stock of

The relator was not and could not have $100,000 was not all paid in by the subscrib- been organized under Act No. 105, of 1898, ers within the year following the date of the because it has not a paid-in capital stock of charter, and that the deficit amounted to $200,000. Relator's existence as a corpora$24,561.50.

tion, therefore, depends on the constitutionOn October 3, 1908, the Secretary of State ality of the law under which it was created. notified the company that he would revoke its

The only other ground of alleged uncon. license and authority to do business if the stitutionality is that: capital stock should not be fully paid up by teenth amendment of the Constitution of the

"The said act violates section 1 of the fourOctober 18, 1908.

United States, in that equal rights of operation On October 15, 1908, the relator instituted in this state are not given local and foreign inthe present suit for a mandamus to compel surance companies; foreign companies being emthe Secretary of State to issue a certificate powered to do business without paid-up capital

stock." to relator permitting it to do business in the state, and for an injunction to restrain that As the second paragraph of section 2 of officer from interfering with the business of article 2, p. 143, of Act No. 105, of 1898 rethe company as conducted by the relator. quires every foreign insurance company to

The court ordered an alternative writ of show “that it has, if a stock company, a fully mandamus to issue, and a writ of injunction paid-up and unimpaired capital, exclusive of

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