Opinion
7 Div. 662.
May 6, 1930. Rehearing Denied May 27, 1930.
Appeal from Circuit Court, Talladega County; W. B. Merrill, Judge.
Robert, alias R. P. Tucker, was convicted of engaging in business as an insurance agent without license, and he appeals.
Affirmed.
Certiorari denied by Supreme Court in Tucker v. State (7 Div. 976) 129 So. 291.
Riddle Riddle, of Talladega, for appellant.
A mutual aid company operating without profit is not an insurance company. 1 Green Dig. Am. St. Rep. 2123; State ex rel. Sheets v. Pittsburg, C., C. St. L. R. Co., 68 Ohio St. 9, 67 N.E. 93, 64 A.L.R. 405, 96 Am. St. Rep. 635. The act requiring a license of insurance agents expressly exempts agents of reciprocal exchanges and other classes of organizations. Acts 1927, p. 36, § 6. Penal statutes must be strictly construed. Noles v. State, 24 Ala. 672. The word "reciprocal" means "done by each to the other — given and received — due from one to the other — mutual." The Legislature is presumed to have used words in their proper significance unless the contrary in some way appears. Webster's Int. Dict.; 29 Cyc. 7; Thurman v. State, 18 Ala. 276; Young v. State, 58 Ala. 358. It is the duty of the state to show every fact and circumstance necessary to establish the guilt of the accused. Wharton v. State, 73 Ala. 366.
Charlie C. McCall, Atty. Gen., and Wm. P. Cobb, Asst. Atty. Gen., for the State.
The insurance laws make it unlawful and penalize any one who represents, without an agent's license, an insurance company which has not been licensed to do business in this state. Defendant solicited insurance, took applications, collected premiums, etc. The association represented by him is not licensed in Alabama, and defendant is not licensed. Such association is an insurance company. Insurance Laws of Alabama, §§ 54, 275, 443, 450, 457, 458, 487; Acts 1927, pp. 34, 148; Code 1923, §§ 4590, 4591, 5427, 8372; Report of Atty. Gen. 1926-1928, p. 349; Northwestern L. Ass'n v. Stout, 32 Ill. App. 31; Hill v. Farmers' etc., Co., 129 Mich. 141, 88 N.W. 392. The state was not required to allege that defendant does not come within the exempted class. This is defensive matter to be shown by defendant.
Appellant was convicted of the offense of violating the provisions of act of the Legislature of Alabama approved February 10, 1927 (Gen. Acts of Ala. 1927, p. 34) — engaging in business as an insurance agent without a license, etc.
If appellant belonged to one of the "exempt" classes mentioned in the act referred to, this was defensive matter, to be set up by him by proper plea. Sanford v. State, ante, p. 58. 120 So. 577. The demurrers to the indictment were properly overruled.
The evidence in the record amply discloses that appellant was engaged in committing acts constituting him an "insurance agent" within the purview of the terms of the legislative enactment above referred to.
As we read the record, the real defense relied upon by appellant was that, in doing the acts and things shown by the evidence, he was performing as the agent of a "reciprocal exchange" in such sort that the provisions of the act of the Legislature above mentioned did not apply to him, by virtue of the "exemption" contained in section 6 thereof.
One answer to this contention is that, in our opinion, the "reciprocal exchange" mentioned in said section 6 of the above cited act, refers to, and means, a reciprocal exchange which has qualified to do business in Alabama under the terms of article 3 of chapter 306 of the Code of Ala. of 1923, Code 1923, §§ 8384 to 8393. The concern for which it is here shown appellant was acting agent was not so qualified, as appears from the evidence, hence appellant could claim no benefit from section 6 of the act of the Legislature of Alabama, above described.
Another answer is that from a careful reading of the "policies of insurance" — so styled within the bodies of same — which were introduced in evidence, and with which it was shown appellant was connected in the way of being the "agent" handling same, or soliciting same, for the concern issuing them, we are convinced that, while some effort was apparently made to draft them in a way to constitute them merely certificates of membership in a "reciprocal exchange," etc., still, intrinsically, and for all practical purposes, and within the purview and meaning of our statutes on the subject, they are no more nor less than straight, but somewhat dubious, "fire insurance policies."
In either event, we find no prejudicial error infecting the proceedings resulting in the conviction of appellant, and the judgment is affirmed.
Affirmed.