MISSISSIPPI INS. COMM. v. INS. CO. OF N.A

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Docket Number

No. 36768.

Attorney(S)

Greek L. Rice, Attorney General, by Geo. H. Ethridge, Assistant Attorney General, and James A. Blalock, of Jackson, for appllant. Section 5829 of the Code of 1942, purporting to give the Chancery Court jurisdiction of this cause, is unconstitutional and void, because (a) it attempts to give a court jurisdiction of a non-judicial matter; and (b) it attempts to give a chancery court appellate jurisdiction of a non-equitable matter. Dixie Greyhound Lines, Inc., v. Mississippi Public Service Commission, 190 Miss. 704, 200 So. 579; California Co. v. State Oil Gas Board, 200 Miss. 824, 27 So.2d 542, 28 So.2d 120; Bell v. City of West Point, 51 Miss. 262; W. Horace Williams Co. v. Federal Credit Co., 198 Miss. 111, 21 So.2d 528; Holberg v. Macon, 55 Miss. 112; Gulf S.I.R. Co. v. Adams, 85 Miss. 772, 38 So. 348; Federal Credit Co. v. Zepernick Grocery Co., 153 Miss. 489, 494, 120 So. 173; United States v. Los Angeles S.L.R. Co., 273 U.S. 299, 47 S.Ct. 413, 71 L.Ed. 651; Federal Radio Commission v. Nelson Brothers Bond Mortgage Co., 289 U.S. 266, 53 S.Ct. 627, 77 L.Ed. 1166, 89 A.L.R. 406; Code of 1942, Secs. 1206, 1207, 5829; Constitution of 1890, Secs. 144 (ff), 156, 159; 10 Am. Jur. 544; 11 Am. Jur. 845, Sec. 155; 3 Stephen's Commentaries (15 Ed.), pp. 350-351. The Insurance Commission had no jurisdiction to approve the plan filed with it by the North America Companies, for the reason that the plan was improperly filed. Amis v. Home Owners' Loan Corporation, 192 Miss. 309, 5 So.2d 425; Code of 1942, Secs. 5816, 5819, 5821, 5823, 5827; Mississippi Digest, Statutes, Key No. 219. If considered on its merits, the North America plan could lawfully and justifiably be disapproved by the Insurance Commission; and such disapproval should be sustained by the courts upon appeal and review. Sheffield v. Reece, 201 Miss. 133, 28 So.2d 133; Tri-State Transit Co. v. Mobile Ohio Transp. Co., 191 Miss. 364, 2 So.2d 845; Causey v. Jones, 193 Miss. 495, 10 So.2d 356; General Insurance Co. of America v. Superintendent of Insurance and Merchants Fire Insurance Co. of Indiana v. Superintendent of Insurance, 130 Ohio 82, 196 N.E. 774; Department of Insurance of Indiana v. Merchants Fire Insurance Co., 222 Ind. 611, 57 N.E.2d 62; United States v. South-Eastern Underwriters Ass'n., 322 U.S. 533, 88 L.Ed. 1440; Code of 1942, Secs. 5818, 5821, 5832; Mississippi Digest, Statutes, Key Nos. 181 (1), 205, 206, 207; 20 Am. Jur. 64, Sec. 41; 50 Am. Jur. 451, Sec. 430 (ff). The manner in which the Chancery Court conducted the hearing of this cause — both as a de novo hearing and as a multifarious hearing — was contrary to law and deprived the appellant Insurance Commission of substantial rights. Lotterhos, Travis Dunn, of Jackson, for appellees. The Installment Premium Plan is not in conflict with the law of this State. Liverpool London Globe Ins. Co. v. Hinton, 116 Miss. 754, 77 So. 652; McConnell v. Southern States Life Ins. Co., 31 F.2d 715; General Ins. Co. v. Bowen, 130 Ohio 82, 196 N.E. 774; Code of 1942, Secs. 5686, 5816, 5823, 5824, 5833; Couch on Insurance, Secs. 109, 604. Section 5829, Code of 1942, is constitutional and valid. Cole v. State, 91 Miss. 628, 45 So. 11; Dixie Greyhound Lines v. Mississippi Public Service Commission, 190 Miss. 704, 200 So. 579; Dixie Greyhound Lines v. Mississippi Railroad Commission, 174 Miss. 1, 163 So. 443; Drummond v. State, 184 Miss. 738, 185 So. 207; Knox v. L.N. Dantzler Lumber Co., 148 Miss. 834, 114 So. 873; Mabray v. School Board of Carroll County, 162 Miss. 632, 137 So. 105; McLeod v. Civil Service Commission 198 Miss. 721, 21 So.2d 916; W. Horace Williams Co. v. Federal Credit Co., 198 Miss. 111, 21 So.2d 582; White, Insurance Commissioner, v. National Old Line Ins. Co., 203 Miss. 752, 34 So.2d 234; Department of Insurance of Indiana v. Merchants Fire Insurance Co., 222 Ind. 611, 57 N.E.2d 62; Mutual Benefit Life Ins. Co. v. Welch, 71 Okla. 59, 175 P. 45; 2 Am. Jur., 857. Argued orally by James A. Blalock and Geo. T. Ethridge, for appellant, and by Fred J. Lotterhos, for appellee.

Judges

Sidney Smith, C.J., delivered the opinion of the court.

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MISSISSIPPI INSURANCE COMMISSION v. INSURANCE CO. OF NORTH AMERICA et al.

1. CERTIORARI.

The statute providing for an appeal by certiorari to chancery court from an order of the Insurance Commission is unconstitutional insofar as it permits a trial de novo in the appellate court (Code 1942, sec. 5829).

2. CERTIORARI.

Where trial de novo by chancery court of appeal by certiorari from an order of the Insurance Commission was error and decision of questions presented by insurance companies complaining of order of Commission required a trial de novo, so that nothing would be accomplished by remanding case for another trial, Supreme Court, on appeal of Insurance Commission, ordered proceeding dismissed (Code 1942, sec. 5829).

Sidney Smith, C.J., delivered the opinion of the court.

This is an appeal by the appellees, who are fire insurance companies, from an order of the Mississippi Insurance Commission, denying them the right to use a plan proposed by them for the payment in installments of the premiums on certain insurance policies issued by them. The appeal is under Section 5829, Code of 1942, which provides for a trial de novo in the appellate court. Over objection of the appellant, the case was tried de novo in the court below, and a decree rendered, reversing the order of the Insurance Commission, and permitting the appellees to use the installment-premium-paying plan desired by them. Section 5829, insofar as it permits a trial de novo in the appellate court, is constitutionally invalid. California Co. v. State Oil Gas Board, 200 Miss. 824, 27 So.2d 542, 28 2d 120. It therefore conferred no such power on the court below, and it erred in exercising it.

The decision of the questions here presented by the appellees rquire a trial de novo therefor. Consequently, nothing would be accomplished by remanding the case for another trial.

Reversed and dismissed.

MISSISSIPPI INSURANCE COMMISSION v. INSURANCE CO. OF NORTH AMERICA et al.

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