On Rehearing.
ST. PAUL, J.On reconsideration of this case we find something to add to the conclusions heretofore reached but little to change.
We are of opinion that the question, whom did Bocquet & Co., represent is one of law and not of fact alone. If it *136were merely the latter we would have had little difficulty in reaching a conclusion.
Aside from the oral testimony in the record, the sample policy produced by plaintiff, which had been in its possesion for a year or thereabout, shows that Eocquet & Co., were the representatives of plaintiff in connection with its insurance, being in possession of its private insurance forms with their own (Eocquet & Co’s.) business “card” printed in red ink and large type across the face thereof. Furthermore these same forms required on their face that when attached to a policy they should show who was agent for the Insurance Company.
It is therefore idle to say that plaintiff dealt with Eocquet & Co., in the belief that they were agents for all the insurance companies whose policies plaintiff held merely because the policies had been physically brought to them by Eocquet & Co., and pasted on the outside of each policy was another business card of the latter showing not that they were the agents of the conmpany but that the business in which they were engaged was ‘ ‘ insurance. ’ ’
There was this difference however between plaintiff and the insurance companies; that plaintiff knew and evidently consented that the “card” of Eocquet & Co. should appear conspicuously upon their private insurance forms, whilst there is nothing in the record to show that either the insurance companies or their agents consented or even knew that Eocquet & Co. were pasting their card upon the policies before delivering them to plaintiff. In other words, there is nothing to show that the insurance companies consented to or even knew of that by which plaintiff claims to have been misled, whilst it appears affirmatively that plaintiff had full knowledge of and permitted to pass unchallenged a state of affairs which might readily induce the insurance com*137pañíes to believe that Rocquet & Co. had charge of plaintiff’s insurance.
Nor do we accept the doctrine advanced by plaintiff that Rocquet & Co. were “dealers in a commodity” of which plaintiff had need and of which it ordered just so much and refused to take any more; in other terms, that the transactions were all strictly between plaintiff and Rocquet & Co. Insurance policies are not “commodities,” nor “goods” nor merchandise, of which one can acquire a supply which he then sells or assigns or transfers to another, thus making two separate transactions. But an insurance policy is a single contract strictly personal between the underwriter and the assured, bringing them a1 once into direct contractual relations with each other. The intermediary between these two is not a principal in two distinct transactions, but he is the agent of either one or the other, or of both parties to one single contract.
Nor do we find anything in Act No. 105 of 1898 that makes Rocquet & Co. an agent of the insurance company. The section of the act relied on by plaintiff in this respect is Section 23, page 151, which provides that any person who shall solicit insurance for a consideration or transmit for a person other than himself an application for insurance or act in any way in the negotiation for insurance, shall be “deemed an insurance agent within the intent of the act shoqld he receive from the company any compensation whatever, and shall become liable to all the duties, requisitions, liabilities and penalties to which an agent of such company is subject.”
It is to be observed first, that the section refers only to persons who receive compensation “from the company,” and, secondly, that though such person shall be deemed an insurance agent within the intent of the act, and shall be liable to all the duties, liabilities and penalties to which *138an agent of the company is subject, yet it is nowhere stated that such person shall be deemed the agent of such company. On the contrary, the only penalty or liability which would be incurred by paying a commission to any but a lawful agent is set forth in Section 5, page 146. The whole purpose of Section 23 is simply to make more sweeping the provisions of Sections 3 and 4, page 145.
Now it is nowhere shown that Eocquet & Co. received any compensation whatever from those companies which they did not represent, though it is shown that the agent of those companies shared with them the commissions which they received. Section 5 is not altogether clear as to its meaning, but apparently it has no application to the sharing of commissions between agents of different companies.
At any rate, in 1902, it was deemed necessary to pass another statute on the subject. Section 2 of that Act (No. 167) contains a limited prohibition agains the sharing of a commission by an agent. But even here there is again apparently no prohibition against the sharing of a commission between the agents of different companies. It will be noticed that throughout the statute the indefinite article a or an is used, while the construction contended for by plaintiff would require the substitution of the definite article the as “the agent” for “an agent, “the company” for “a company.”
But granting that the statutes are susceptible of two constructions, then in construing their penal features, that interpretation must be adopted which would operate most favorably towards an accused a'nd the words of a statute cannot have two different meanings, one of which is applicable exclusively in criminal matters, and the other in matters civil in their nature.
Finally, conceding that the statute does make it unlawful for the agent of one company to divide commis*139sions with the agent of another company, is it to be presumed, in the face of that fact, that Section 23 can possibly contemplate that the penalty of the unlawful act shall fall on the company, itself not a party thereto. In other words, is it to be assumed in the absence of some clear provision to that effect, that the State of Louisiana, after inviting a company to do business within its limits on complying with certain prerequisites, and after declaring that certain acts on the part of its agents (citizens of the State always) should constitute a crime, yet meant to say that the act of the same agent, beyond the scope of his authority, and in direct violation of a penal statute, should entail consequences on his principal (innocent of any wrongdoing) which might in its ultimate result amount to a confiscation of its property. We do not think so.
We repeat: Eocquet & Co. received no compensation from the companies they did not represent; there was apparently nothing unlawful in their receiving from the agents a part .of the compensation which the latter received; but whether lawful or unlawful, and even had they received compensation from the companies direct, they would not thereby have become the agents of such companies.
We have examined the opinion herein first handed down, and now think that in one respect it goes too far. We think that so much of the opinion and syllabus as holds that the only authorized agents of an insurance company are those who hold certificates from the Secretary of State is somewhat too broad in its statement. It was not necessary for the purposes of the case, and must ■therefore, be taken as obiter dictum and considered as stricken from the opinion.
But this in no way affects the main question herein. Eocquet & -Co. were in no manner, shape or form the *140agents of the companies whose policies figure so prominently in this controversy. They weie as we have found and still find, both in fact and law, the agent of plaintiff.
January 10, 1910. Eehearing refused January 21, 1910. February 28, 1910, writ granted by Supreme Court. April 26, 1910, decree, Supreme Court.When Eocquet & Co, applied for insurance in behalf of plaintiff and accepted the policies from the agents of the companies, these immediately became binding. They could not thereafter be canceled except by notice to the companies through the agents of the latter. No such notice ever reached the companies ’ agents. The fact that by custom Eocquet & Co. had the privilege of canceling the policies within a given delay, without cost to plaintiff, their principal, is of no consequence. The proper steps were not taken by plaintiff to avail itself of that privilege, its own agent failed to do the one thing necessary to take advantage thereof.
The policies were, therefore, not canceled, but they were in full force when the loss occurred, and after that it was too late to release some companies to the manifest prejudice of others.
Our former decree was correct and will remain unchanged.
Former decree reinstated.