A vital consideration to a correct decision in this case, and one which, in my opinion, justifies the position taken by Mr. Justice Carter, is the thought expressed in Owen v. Insurance Co.,84 S.C. 253, 66 S.E., 290, 292, 137 Am. St. Rep., 845, where Mr. Justice Hydrick said: "The defendant, a foreign insurance company, had not legal right to do business in this State, except upon such terms and conditions as the State has seen fit to impose; and, when it came here to do business, it was bound to take notice of our laws."
It has also been held that the business of insurance is affected with such public interest that the power to legislate thereabout may be exercised and exerted "to the extent necessary to make proper regulation effective, provided constitutional rights are not infringed"; and that "it is important *Page 327 for the protection of the interests of the people of the State that the business should be in the hands of competent and trustworthy persons." La Tourette v. McMaster, 104 S.C. 501,89 S.E., 398, 399; affirmed by U.S. Supreme Court,248 U.S. 465, 39 S.Ct., 160, 63 L.Ed., 362. Similarly, in O'Gorman Young v. Insurance Co., reported in 282 U.S. 251,51 S.Ct., 130, 131, 75 L.Ed., 324, it was said: "The business of insurance is so far affected with a public interest that the State may regulate * * * the relations of those engaged in the business."
This fundamental principle which underlies the interpretation and construction to be placed on insurance legislation was evidently in mind in the adoption of the statutory provision, contained in Section 4068 of the Code, that a foreign insurance company, desiring to engage in business in this State, cannot procure a license from the insurance commissioner, until it has filed with him the affidavit of its president or chief executive officer, "so as to bind the company," that "it accepts the terms and obligations imposed by the laws of this State as part of the consideration for such license."
The statutory provisions which follow Section 4068 in the Code furnish a chart to the public as well as to insurance companies and their agents of the insurance methods that must be followed in order to conduct a business of insurance in this State. Since the public must deal with an insurance company only through the company's agents, it is of the highest importance that the public shall be protected against irresponsible agencies. This is recognized and provided for by Section 4069 of the Code, which prescribes the persons qualified under its terms who may lawfully act as insurance agents. An insurance company cannot give any person the right to act as its agent in transacting the business of insurance in this State until the Insurance Commissioner has passed on the appointment, determined "that the agent is a fit and proper person," and, conformably to such determination, issued an agency license, which (carrying the Insurance Commissioner's recommendation "that the agent is a fit and *Page 328 proper person" with whom the public may deal safely in an insurance way) is subject to be revoked "after thirty days' notice and examination whenever it shall appear that said agent has violated the laws of this State, or has wilfully deceived or dealt unjustly with a citizen of this State."
In Brunson v. Bankers' Life Ins. Co., 140 S.C. 31,138 S.E., 522, 524, the agency statute received the construction: "A separate license is to be procured for each company that a person works for."
In Ballentine v. Covington, 109 S.C. 217, 96 S.E., 92,93, an unlicensed agent who had written a policy of life insurance was held to have acted "in violation of law," and, therefore, not entitled to the protection of the law in the contract he had made, since the object of the insurance statute is not for revenue only, "but to protect the public from fraud and imposition and not to allow unfit and improper persons to solicit insurance."
Section 4090 has the provision that an insurance company, not incorporated under the laws of this State, may not issue a policy of fire insurance upon property situated or located in this State, except after the said risk has been approved, in writing, and the policy countersigned, "by an agent who is a resident of this State, regularly commissioned by the company doing business in this State"; or, as expressed in slightly different language in the proviso at the end of the Section, "by agents who are residents of this State, regularly commissioned to transact the business of insurance herein."
I cannot think that our insurance laws should be given such interpretation and construction as to authorize a foreign insurance company to transact its business in this State through a person who, if he represents the company at all, must represent it in violation of the law.
The obvious purpose of the entire body of the insurance laws, taken as a whole, is that the Insurance Commissioner, for the protection of the interest of the people of the State, shall have supervision and control over the great business of *Page 329 insurance which is transacted by foreign insurance companies in this State. Section 4090 of the Code is but one of the many Sections in the chapter comprising the insurance legislation. To give this single Section such interpretation and effect, as to permit foreign insurance companies to be represented by agents operating in violation of other Sections of the same general statutory law, "would be to sacrifice the legislative will to the mere form and phraseology of its expression." Trammell v. Mfg. Co., 102 S.C. 483,86 S.E., 1057, 1058. The requirement of an agency license, based on approval of the fitness of the agent and subject to be revoked if he afterwards deals unjustly with the public, gives the Insurance Commissioner his greatest power of proper supervision and control in insurance matters.
The principles of statutory construction sanctioned in our decisions are but guides to the application of the "rule of reasonable, sensible construction, having in view effectuation of the legislative purpose." Crescent Mfg. Co. v. Tax Commission,129 S.C. 480, 124 S.E., 761, 765. "However plain the ordinary meaning of the words used in a statute may be, the Courts will reject that meaning, when to accept it would lead to a result so plainly absurd that it could not possibly have been intended by the Legislature, or would defeat the plain legislative intention; and if possible will construe the statute so as to escape the absurdity and carry the intention into effect." Stackhouse v. County Board, 86 S.C. 419,68 S.E., 561, 562.
The provision made by Section 4090, even when considered together with Section 4092, which provides the penalty for its violation, must be regarded as remedial as well as penal; and, therefore, the rule applies, as was stated inTrammell v. Mfg. Co., supra, that, "insofar as it is remedial, it should be construed liberally, to suppress the mischief it was designed to remedy." This general rule extends to the consideration of the penal provision of the statute for — while a statute, insofar as it is penal, should be strictly construed to prevent injustice or oppression — it has always been *Page 330 recognized that, even as to a penal statute, the construction should not be so strict as to defeat its obvious purpose. Millsv. Ry. Co., 82 S.C. 242, 64 S.E., 238, 239; Huguelet v.Warfield, 84 S.C. 87, 65 S.E., 985; City of Anderson v.Fant, 96 S.C. 5, 79 S.E., 641; Crescent Mfg. Co. v. TaxCommission, supra. The controlling principle which should govern our considerations in matters of this kind is well stated in Mills v. Ry. Co., supra, where it is said that "the legislative design in statutory enactment ought not to be cut short by narrow verbal distinctions, nor enlarged into oppression by giving to the words used too broad a signification."
Other like considerations have been announced in still more recent decisions, viz.: All rules of statutory construction yield to the principle that the Court must ascertain the real intention of the Legislature. State v. Brown, 154 S.C. 55,151 S.E., 218. The Court will reject that meaning of the words of the statute which would lead to absurd consequences.Robson v. Cantwell, 143 S.C. 104,141 S.E., 180. The Court, in construing a statute containing inconsistencies, will look to "the mischief sought to be avoided and the remedy intended to be afforded." Law v. Prettyman Sons, 149 S.C. 178, 146 S.E., 815, 817. Where the Section in question, construed with other Sections of the Article in question, constitutes or creates an ambiguity, the Court may go back to the original Act and trace the real meaning intended by the Legislature. Palmetto Lumber Co. v. Ry.Co., 154 S.C. 129, 151 S.E., 279.
The insurance legislation of this State dates back to the Statute of 1869 (14 Stat., 204), in which (by Section 1) it was made unlawful for any agent of any insurance company, not incorporated by the laws of this State, to take risks or transact any business of insurance in this State, without first obtaining a license from the Comptroller General; and (by Section 2) it was provided that, before such license could be issued, there should be filed with the Comptroller General a certified copy of the charter of the company *Page 331 and also a certified copy of the vote or resolution of the trustees or directors of the company appointing him such agent, accompanied by a warrant of appointment under the official seal of the company and signed by the president and secretary.
The next important insurance statute was the Act of 1888 (20 Stat., 62), making it unlawful for any insurance company not incorporated under the laws of this State, or any agent of such company, to take risks or transact any business of insurance in this State without first obtaining a license from the Comptroller General, which license should, however, give said company "the power and authority to appoint any number of agents to take such risks, or transact any business of insurance in each and every county of the State:Provided, the Comptroller General is notified of such appointmentbefore the said agent takes any risks or transactsany business as aforesaid, giving the postoffice address, residence,and a certified copy of the resolution appointing suchagent or agents, duly signed by the President and Secretaryof such company." Section 1.
The next forward step in insurance legislation was the Act of 1900 (24 Stat., 394), in relation to the transaction of business by fire insurance companies. Section 1 of such Act is the same as the present Section 4090 of the Code, except that in the original Act the general purpose of the Act was expressed as being "to the end that the State may receive the taxes required by law to be paid on the premiums collected for insurance on all property located in the State."
The Code of 1902 incorporated in its provisions the portions of the Statutes of 1869 and 1888, which designated with particularity the mode prescribed for insurance companies to follow in issuing commissions to agents, and which had to be followed in order to give authority to such agents to engage in business, representing insurance companies, in the State of South Carolina.
The State Insurance Department was not established until the Act of 1908 (25 Stat., 999), which provided an Insurance *Page 332 Commissioner and placed upon him the duties theretofore imposed on the Comptroller General. In this Act there was no provision which changed in any other important respect the previously existing insurance laws of the State.
The Act of 1909 (26 Stat., 7) enlarged the insurance regulations, and contained the requirement now existing as Section 4068 of the Code, requiring a covenant on the part of the company to accept the terms and obligations imposed by the insurance laws of the State as part of the consideration for its license to enter the State.
In 1910 (26 Stat., 774), the agent's license requirement was adopted. This requirement was designed to give the Insurance Commissioner a more complete control and supervision over the agents representing the companies, and as insurance companies have to do business through agents, the natural consequence of the Act was that the Insurance Commissioner was given more complete supervision and control over the business of the companies. That the requirement of this Section of the statute was intended to apply to companies as well as to agents clearly appears from the proviso: "Copies of all forms of policy contracts issued by companies or associations licensed to do business in this State shall be filed with the Insurance Commissioner." Section 16. Various other Sections of the Act of 1910 had relation altogether to regulation of the business of insurance as conducted in this State by the insurance companies, and were designed to supplement existing legislation for the purpose of increasing the power of the Insurance Commissioner in order to give him still greater latitude of supervision and control over such business.
In the 1912 codification of the insurance laws of the State, the requirement that an agent procure a license authorizing him to represent an insurance company, before doing any business for such company, was regarded and treated as superseding the previously existing requirement that the company furnish the Insurance Commissioner (Comptroller General) with "a certified copy of the resolution appointing *Page 333 such agent or agents, duly signed by the President and Secretary of such company." This mode of commissioning insurance agents, which, provided by the Act of 1888, became a part of the general statutory law of the State in the Code of 1902, was dropped from the 1912 Code; and the agency license requirement, taken from the Act of 1910, was inserted in its stead.
The Act of 1915 (29 Stat., 219), extending to domestic as well as to foreign insurance companies "doing business through agents in the State," added to the general statutory law provided by the Code of 1912, by making it unlawful for any insurance company to write policies of fire insurance, and other specified policies, "except through or by the duly authorized agent or agents of such insurance company or association residing and doing business in this State." One of the objects of this statute, as expressed in its title, was "to provide for the division of the commissions"; and the statute extends its provisions to other insurance companies as well as to fire insurance companies.
The Code of 1922 follows the Code of 1912, incorporating the agent's license requirement and omitting the earlier statutory provision which governed the commissioning of agents prior to the adoption of the agents license statute. Section 4072, embracing the statutory provision of the Act of 1915, follows the requirement of that Act for the issuance of policies by insurance companies through duly authorized agents; and Section 4090 follows the requirement contained in the original Act of 1900 for the insurance of policies by agents regularly commissioned by the company.
It does not seem important whether the words are "duly authorized," as in Section 4072, or "regularly commissioned," as in Section 4090. It was clearly the legislative design in both instances that the insurance company, doing business through agents in this State, should have no other agents than those lawfully empowered under the terms imposed by the State's insurance laws to represent the company in transacting its business of insurance. It is obvious *Page 334 that, before the agent's license law passed in 1910, a foreign fire insurance company could not regularly commission an agent — or confer authority to take risks or transact any business of insurance — except by compliance with regulation which required that the company should file with the designated state official "a certified copy of the resolution appointing such agent or agents, duly signed by the President and Secretary of such company." It is equally obvious that the mode of commissioning the agent was intended to be changed by the requirement of the Act of 1910 that the agent should procure a license; and that, thereafter, a foreign insurance company could not regularly commission an agent to represent it in this State, except by compliance with the changed requirement.
The defendant corporation, as a foreign insurance company seeking to do business in this State under privilege granted by the State laws, was bound to take notice of this change in the insurance regulations, and to conform thereto in making appointments in this State.
The interchange of correspondence between defendant corporation and the Insurance Commissioner's office, offered in evidence by appellant, shows the departmental interpretation of the statute, which was known to defendant corporation, and which was accepted by it without question. Months before the controversy in this particular case, Insurance Commissioner John J. McMahan, the predecessor in office of Mr. Sam B. King, the present Insurance Commissioner, wrote the Firemen's Insurance Company, under letter of date December 17, 1927, calling attention to complaints that parties referred to in previous correspondence had been writing policies of insurance although they had not been licensed as agents. In response, Mr. Neal Bassett, president of the Firemen's Insurance Company, under his letter of date December 20, 1927, wrote the Insurance Commissioner as follows:
"As to their solicitation of or binding insurance prior to the time they are licensed, permit us to say that no appointee *Page 335 of this company is ever authorized to represent the companyin any State until after such appointee has been dulylicensed by the State. We quite understand that the law of your State (and we believe of every other State) requires that before a local agent of an insurance company can legally bind a company in a State he must be licensed by the State. * * *
"No commission of authority has yet been sent to theseappointees and none will be sent until they are licensed to dobusiness by the State. This is our practice."
It is a recognized aid of statutory interpretation that usage may be considered in the construction of an ambiguous statute. Barksdale v. Morrison, Harp. (16 S.C.L.), 101. The practical construction given to a statute by public officers and acted on by the people is not only to be considered, but in case of doubt will be regarded as decisive. Gill v. Boardof Commissioners v. Wake County, 160 N.C. 176,76 S.E., 203, 43 L.R.A. (N.S.), 293; City of Richmond v.Drewry-Hughes Co., 122 Va., 178, 90 S.E., 635, 94 S.E., 989; State v. Board of Control, 84 W. Va., 417,100 S.E., 215; St. Paul, etc., R. Co. v. Phelps, 137 U.S. 528,11 S. Ct., 168, 34 L.Ed., 767; Kern River Co. v. United States,257 U.S. 147, 42 S.Ct., 60, 66 L.Ed., 175; First NationalBank v. Missouri at inf. of Barrett, 263 U.S. 640,44 S. Ct., 213, 68 L.Ed., 486; Swendig v. Washington WaterPower Co., 265 U.S. 322, 44 S.Ct., 496, 68 L.Ed., 1036.
That the above construction given to the requirement of Section 4090 is also fully warranted by the plain and ordinary meaning of the terms used in the Section, independently of the aids of statutory construction that have been discussed, seems also to be clearly evident.
The word "regular" is defined as meaning "duly authorized; conformable to law or custom." The word "regularly" is defined as meaning "in a regular manner; in a custom or method, according to rule or established mode."
"Commission" is defined as meaning "to appoint; empower, delegate." In the connection in which it is used in Section 4090 of the Code, it obviously means "empower." *Page 336
The expression "an agent, regularly commissioned," may, therefore, under the ordinary acceptation and meaning of the term, be considered as equivalent to "an agent lawfully empowered"; or, in other words, to an agent authorized under the insurance laws of the State to represent the insurance company in transacting its business of insurance in a lawful manner.
The unpublished opinion of his Honor, United States District Judge Ernest F. Cochran of the Eastern District of the State of South Carolina, rendered in the case of Stateex rel. Vernon C. Earle v. Sam B. King, Insurance Commissioner,54 F.2d 941 has been urged upon us as expressing a contrary point of view to that above expressed. The case is, however, one which involves the administration of the State laws in the exercise of the functions of state government; and, in regard to controversies of such character, we have the high sanction of the Federal Supreme Court for taking the position that the State Court is charged with the responsibility and duty of saying what the State laws mean.
In Jones v. Prairie Oil Gas Co., 273 U.S. 195, 47 S.C. 338,339, 71 L.Ed., 602, Mr. Justice Holmes, speaking for the United States Supreme Court, said that "the exclusive authority to enact those (state) laws carries with itfinal authority to say what they mean."
In Fenner v. Boykin, 271 U.S. 240, 46 S.Ct., 492, 493,70 L.Ed., 927, holding that a Federal Court should not enjoin the execution of a state statute dealing in futures, Mr. Justice McReynolds said: "An intolerable condition would arise, if, whenever about to be charged with violating a state law, one were permitted freely to contest its validity by an original proceeding in some Federal Court."
The administration of the laws enacted for the regulation of the business of insurance in this State was placed by express statutory provision on the shoulders of the Insurance Commissioner, with the duty imposed upon him to make *Page 337 rulings and decisions in administrative matters. Any ruling or decision that he may make is subject, nevertheless, to review; and the mode of review is specifically prescribed by statute.
Section 4065 provides: "That any order, ruling or decision of the Insurance Commissioner in all matters, either of law or discretion, within the jurisdiction of his department, shall be subject to review by certiorari or mandamus proceedings before any Circuit Judge or Justice of the Supreme Court, which may be held at chambers or in open Court, upon thirty days' notice to the Insurance Commissioner."
In the case where the ruling of District Judge Cochran was made, the foreign insurance corporation, which is the defendant in the present action, failed to follow the mode prescribed by the above-quoted statutory provision, and sought construction of the State insurance statutes in the Federal Court. The District Judge, assuming and exercising jurisdiction, undertook to supervise and determine the administration of the State statutes before the question of the construction to be given such statutes had been passed upon by the State Court. The opinion, rendered under such circumstances — except only to the extent that its reasoning satisfies and is convincing — is not entitled to weight in controlling the construction to be given by this Court to the state laws. For the reasons that have already been stated, the opinion of his Honor, Judge Cochran, should not be followed by this Court, however much we respect his views.
It is an elementary rule of statutory construction that sections which are part of the general statutory laws of the State must be construed together so as to harmonize them if possible. Rookard v. Ry. Co., 89 S.C. 371,71 S.E., 992; State v. Fidelity Deposit Co., of Maryland, 114 S.C. 511,104 S.E., 182; Gordon v. Bell, 116 S.C. 466,108 S.E., 186. All regulations contained in the Code, in the chapter on insurance, serve the general purpose to place the business of insurance in the State under such effective supervision *Page 338 and control of the State Insurance Department as to assure: First, the betterment of insurance conditions "for the protection of the interests of the people of the State"; and, second, the receipt by the State of the taxes required by law to be paid on the premiums collected for insurance. An effective supervision over companies that are themselves beyond the reach of the state laws is impossible except through supervision of the agents who represent such companies in the State. The public have no direct dealings with the companies. They must deal with the agents. The books and records of the companies, showing premiums collected from business done in this State, are kept at offices maintained in other states. The records which the agents are required to keep showing premiums collected are kept at offices maintained in this State which are accessible to the Insurance Commissioner.
The continuing growth of the insurance business done in this State resulted, in 1908, in the establishment of the insurance department. The need of more effective supervision and control over the agencies producing such business resulted, two years later, in the agency license requirement. (It is manifest that such requirement was not intended for revenue because the license fee of 50 cents is barely sufficient, if it is sufficient, to cover the cost of investigating the applicant and issuing the license.) The power to revoke the agent's license is coupled with its issuance. The agent, violating the laws of the State, or willfully deceiving or dealing unjustly with citizens of the State, is faced with the danger of being barred from engaging in the business of insurance in the State.
The consequences of decision in the present case — in its effect on the entire structure of insurance legislation, of which the agent's license requirement is the corner stone — is far more vital to the State than the collection of a penalty for an isolated instance of willful violation of the insurance laws. An insurance company, applying for a license to do *Page 339 business in this State, is required by Section 4063 of the Code to satisfy the Commissioner by proper evidence "that its dealings are fair and equitable and that it conducts its business in a manner not contrary to the public interests." The holding of this Court that the company may transact its business of insurance through unlicensed agents, where it is known to the company not only that the agents are unlicensed but that they have been refused licenses, would amount to judicial sanction to the company to conduct its business in a manner that the Legislature has declared contrary to the public interests.
The position of the insurance company in this case is not greatly improved by the argument that the agent was a fit and proper person who was entitled to the license. The duty is placed on the Commissioner to determine, from the insurance standpoint provided in Section 4069, "that the agent is a fit and proper person" to conduct an insurance business "in a manner not contrary to the public interests." Section 4063. The Commissioner's so-called "bank agency ruling," under which he refused the license in question, seems based upon the premise that insurance agencies, operated in connection with banks, constitute an alliance of banking and insurance interests, susceptible both to unfair use of the bank's control over borrowers to require them to take policies through the insurance department of the bank, and also to the writing of policies, on property in which the bank is interested, for risks that a disinterested agent might not be willing to approve.
Whether the position of the Insurance Commissioner was right or wrong in his ruling is of comparative unimportance in the case. The matter is not before us. There can be no doubt that the question of issuing "bank agency" licenses was one which it was the duty of the Insurance Commissioner in the first instance to pass upon and decide. He could not evade this duty or obtain a construction from the Court before performing it. The ruling that he made, even *Page 340 if wrong, was the departmental construction which, until it was reversed, could not lawfully be disregarded. The right to review the ruling existed. The statute providing this right contained the somewhat unusual provision for review bycertiorari or mandamus which might be sought in the original jurisdiction of the Supreme Court. The defendant, without availing itself of this right, chose to stand on its assumption that the Insurance Commissioner was without authority, and that the company, regardless of the Commissioner's ruling, was entitled to do business through the agency whether it was licensed or unlicensed. Practice of this kind, if sanctioned or condoned, "makes every man his own law," with liberty to disregard and even defy constituted authority.
It is argued, however, in behalf of the insurance company, that the license fee of 50 cents was sent to the Commissioner, accompanying the application for a license, and that the fee was not returned. Even without any explanation to account for failure to return the fee sent, there seems no justification, either in the letter or spirit of the agent's license requirement, for making the failure to return this 50-cent fee equivalent to the exercise of the discretion vested in the Commissioner to issue the license. The requirement of Section 4069 is that, in addition to the license fee payable to the insurance department, the Insurance Commissioner, before issuing the license, shall determine that the agent is a fit and proper person. It would seem a most strained and unnatural construction to hold that keeping and failing to return the fee paid (whatever the cause) is sufficient to fulfill the statutory mandate prescribing the terms upon which the license may be issued. The statement of Mr. King, the Insurance Commissioner, affords moreover an explanation of the handling of the license fee which gives satisfactory answer concerning the failure to return the fee.
The testimony of Mr. King (offered in evidence, but stricken out by the trial Judge) speaks for itself without the need of further comment: *Page 341
"Q. Mr. King, as to the matter of the $2.00 fees that is mentioned. * * *
"Q. Was any contention made by the Firemen's Insurance Agency or by Mr. Crawford for the return of this check or for the return of the 50-cent fee which was paid for H. C. Hicks? A. None whatever.
"Q. What is the practice of your office with reference to fees that are sent in to you for agency licenses, where those licenses were not issued? A. Quite often a company will send a list of names of fifty people and enclose their check for $25.00, and probably on the next mail we have a letter from them asking us not to license six of them. In which case, we acknowledge receipt of the $25.00 check, and if we have instructions from the company we cash the $25.00 check and send them $3.00, but if not, it is kept for credit to the company, which very often it will be three weeks later they will send in a request to license six agents and they mail application blanks stating that we have credit for $3.00. That is done every day.
"Q. Has that been done before by the Firemen's Insurance Company? A. Yes, sir.
"Q. That is a matter of practice in handling your department? A. Yes, sir.
"Q. Those payments were handled as credits? A. Yes, sir.
"Q. And returns were not made unless returns were requested? A. No, sir.
"Q. The check for $2.00 for these four licenses, as I understand, was not cashed at all? A. That is true.
"Q. The difference between the handling of the check for $40.50 and this check for $2.00 was due, Mr. King, to the fact that all four of these licenses were within the prohibited class? A. That is right.
"Q. And therefore, that check was not cashed? A. That is right." *Page 342
The entire testimony offered by plaintiff to sustain the charges made in the complaint was held irrelevant and was stricken out in the objection made to such testimony by defendant's counsel. The testimony was offered as tending to show defendant's willful violation of the agency provision of Section 4090, and, for such purpose, the proposed testimony was clearly competent.
The correspondence offered in evidence shows: (a) That warning had been given by the Insurance Commissioner, who was Mr. King's predecessor in office, calling the attention of the Firemen's Insurance Company to the requirement that agents should not do business before being licensed; (b) that the insurance company understood the language of the statute to mean that agents had to be licensed by the Insurance Commissioner before they would be entitled to represent the company in such capacity; and (c) that Mr. Coleman, the countersigning agent on the policy in question, and his associates, the H.C. Hicks Agency, had been issued licenses through error and afterwards notified that such licenses should be returned. In the letter of March 10, 1928, containing such notice, the insurance company was also put on notice that, if the licenses issued to the members of the H. C. Hicks Agency were not surrendered, they would expire on March 31st and new licenses for the year beginning April 1, 1928, would not be issued.
The testimony of Mr. King, which was offered in evidence, shows that the business of the unlicensed H.C. Hicks Agency was carried on with the company's knowledge and authorization, even after the positive and final refusal of the Commissioner to issue the licenses requested for the agency. The insurance Commissioner's ruling was communicated to defendant's state agent in personal conference, and from the testimony now before us (it being, of course, understood that this Court should not undertake to anticipate other testimony that may be offered on another trial of the case), there could have been no possible basis of misunderstanding *Page 343 the position of the Insurance Commissioner, and no possible reason for the company's assuming that the agency had no right to continue in business.
Evidentiary also of the attitude displayed by the insurance company in dealing with the entire situation is the testimony of Mr. King that, at the time the agency licenses were requested, it had not been brought to his attention that insurance was being written by the agency, nor was any mention of such fact made by Mr. Crawford during the course of the conference.
"Q. Did he make any reference to the writing of policies by that particular agency at the time that he asked for a license to be issued to the agency? A. None whatever, no, sir."
Similarly evidentiary to sustain the charge of willfulness against the defendant is the testimony that the Commissioner invited a review of his ruling in the mode prescribed by Section 4065 of the Code, and that the insurance company's state agent left the conference with the Commissioner, at which such invitation was extended, upon the understanding that the ruling made should stand until the rest case had been decided. The statements of Neal Bassett, president of the insurance company, and W.D. Crawford, its state agent, as made at a hearing before the Insurance Commissioner on August 23, 1928, were also offered in evidence, for the purpose of showing that Mr. Crawford, as special agent, had communicated to the home office of the defendant, Firemen's Insurance Company, in regard to the Commissioner's refusal to license the H.C. Hicks Agency; and, further, that the defendant's home office was aware that the H.C. Hicks Agency continued to write insurance although no licenses had been issued for that agency. This testimony was also competent.
The agency continued to operate without the test case being brought, but this situation did not come to the notice of the Insurance Commissioner until weeks afterwards *Page 344 when, upon the matter being brought to his attention, an investigation followed, revealing that 88 policies in all had been issued by the H.C. Hicks Agency during the period of its unlicensed operations.
The question of willfulness under such testimony was properly one for the determination of the jury.
MR. JUSTICE STABLER concurs.