(concurring in result).
Although I agree with the results herein, particularly because (1) this insurance agent issued an $80,990.40 NSF check to the state and then failed to make it good for a period of approximately one month, and (2) the insurance agent failed to forward an insurance premium to his company within the industry’s custom and usage practice, I do not agree completely with certain language of the opinion. Therefore, I feel compelled to assert my views.
It is simply a fact of business life in South Dakota that specific identification of individual dollars and separate accounts for customers and insurance companies are not kept by insurance agencies. Trust accounts, as one perceives established by lawyers and realtors, are not the practice nor a requirement of the insurance industry. Our legislature and the State Department of Insurance has failed to pass specific laws and implement standards of conduct for insurance agents in this regard. Simply put, there is a tremendous void with respect to acceptable conduct involving money and, in a sense, this insurance agent is engulfed in this void.
It further appears, as a fact of business life, that insurance agents advance their own customers’ premiums and often borrow money from banks to accomplish this purpose. Often, agents use money received for a premium payment from insurance company “A” to apply on the account of insurance company “B”. Insurance agents live in a fast-moving business world. There are multitudinous amounts of insurance sales, not unlike merchants in other endeavors of the commercial world. This all begets a shuffling and commingling of funds. In fact, commingling is the rule, not the exception. With this background, i.e., the void of law and regulation in this state, and the custom and usage of the insurance industry, Gridley is en-snarled.
SDCL 58-30-88 is a very general, statute and it is upon this statute that the Hearings Officer predicated his decision that *865Gridley had violated his fiduciary responsibility. Under the insurance practices, I cannot fault Gridley for a commingling of funds when it is commonly done in the industry; I cannot fault him for paying off a note and operating his business on a premium which came in to his business account; I must fault him for writing a check of such magnitude and then not immediately taking care of it when he realized it was not honored; and I must fault him for not reasonably forwarding a premium to the insurance company he represented. However, I do not believe that he should bear the sins of the insurance industry and the State of South Dakota which has neglected to manifest, in writing, standards which an agent must follow when he receives premiums.
Lastly, although I have concurred in the results herein, I wish to express that a former assistant attorney general was the Hearings Officer herein and was paid by the State of South Dakota. This action was brought by the State of South Dakota and heard in the state capítol. It involved a civil claim of the State of South Dakota against Gridley. Those associated with prosecuting and hearing the case are well-intentioned men, but young men. Considering all of the circumstances, to include litigation pending between Gridley and Western Casualty and Surety Company, and further considering that the State of South Dakota decided to cancel a State fleet automobile liability policy in the middle of a policy year and re-bid the insurance which triggered an appeal to this Court,* I would hope that the milk of human kindness would someday flow towards Gridley who is in the penumbra of his earthly life. He has been a licensed insurance agent in South Dakota since 1946. The original notice to him requested either a revocation or suspension of his license. The Hearings Officer, acting at the request of the State, upon the complaint of the State, and being paid by the State, opted for the most extreme measure, a revocation. It was a heavy punishment.
Gridley v. Engelhart, 322 N.W.2d 3 (S.D.1982).