author: Smith, J. Wood, J., McCulloch, C. J.,

text:
    Bullion v. Aetna Insurance Company.
    Opinion delivered January 30, 1922.
    1. Statutes — rule of construction. — Where a word which has a known legal meaning is used in a statute, it must be assumed that the term is used in its legal sense, in the absence of an indication of a contrary intent.
    2. Statutes — construction—source of information. — In determining the meaning of a statute, the courts will consider what is the usual and ordinary interpretation given to them by those using them and also consider them in reference to the subject-matter in the mind of the Legislature.
    3. Insurance — underwriting profits defined. — Under Crawford & Moses’ Digest, § 5962 et seq., requiring the Insurance Commissioner to compile the figures showing the results of the business of stock fire insurance companies during the five years preceding December 31 of each year, and providing that “if it appears that for such five-year period the stock fire insurance com- . panies doing business in this State have made an aggregrate underwriting profit in excess of five per cent, the Insurance Commissioner shall have the power to order such reduction in rates as will reduce the underwriting profit on business thereafter done to five per cent.”, “underwriting profit” is arrived at by deducting from premiums earned during the five-year period all losses and expenses incurred during the same period on underwriting business done in this State.
    4. Insurance — underwriting profits — deduction of income taxes. —In determining the underwriting profits for the five-year period, the Insurance Commissioner determines in solido the underwriting profits of all the companies for that period, and in doing so should exclude any allowance for income taxes.
    5. Insurance — underwriting profits — companies to be considered. —In determining the underwriting profits for the five-year period, the Insurance Commissioner should include in the tabulation the business of all stock fire insurance companies that did business in this State under license from the State during any part of said period.
    6. Insurance — underwriting profits — conflagration hazard.— In determining the underwriting profits for the five-year period, the Insurance Commissioner is not required to make any allowance for conflagration hazard.
    Appeal from Pulaski Chancery Court, J. E. Martineau, Chancellor;
    affirmed.

      J. 8. TJtley, Attorney General, and F. G. Lindsey for appellant.
    Losses paid, rather than losses incurred, are used by the Commissioner in his calculations. Income and excess profits taxes are not allowed as an expense. No allowance is made for conflagration hazard.
    The law should be liberally construed. C. & M. Dig., sec. 9728. The purpose of construction is to ascertain the legislative intent. 84 Ark. 411; 106 Ark. 377. Regard must be had for the known object of the statute and evil intended to be provided against. 5 Ark. 536; 25 Ark. 101; 34 Ark. 555. Such construction should be placed on the statute as will not suffer it to be eluded. 3 Ark. 285; 40 Ark. 431; 48 Ark. 308; 27 Ark. 419.
    O. B. Byon- and Cochrill & Armistead, for appellees.
    The “incurred method” is the proper way to reach a profit on loss as distinguished from the “paid for” method. 179 N. W. 185; Cook on Corp., sec. 546; 7 Paige 198; 4 Bob. 182; Appeal Cas. (1912) 443.
    It may be shown by parol that the phrase “underwriting profit” has a technical meaning. 17 Cyc. 685; Wigmore on Evi. sec. 2440; 105 Ark. 518; 113 Ark. 556; 143 Ark. 292; 105 Ark. 197; 102 Ark. 205; 106 Ark. 400; 113 Ark. 325; 151 W. S. 171; 152 W. S. 368; 78 Calif. 285; 56 Miss. 1; 114 N. Y. 190; 104 S. C. 378. Income and excess profits taxes properly apportion-able to the underwriting business in Arkansas should be allowed. 272 Fed. 147; P. W. B. 1920-C 583; 267 Fed. 231; 186 N. Y. 541; P. W. B. 1921-B, 209. Conflagration hazard should be taken into account in determining the profits, the same as benefits to buildings in improvement districts. 88 Ark. 1.
   Smith, J.

Appellees, who were plaintiffs below, are corporations organized under the laws of the various States of the Union, and all of them are doing a fire insurance business in this State; and all of them were so engaged on December 31, 1919; and most of them have been so engaged for a period of more than five years prior to December 31, 1919. All these corporations are members of the Arkansas Fire Prevention Bureau, and are all the insurance companies now doing a stock fire insurance business in this State.

These corporations brought this suit to have adjudicated the duties of the Insurance Commissioner of the State under act No. 163 of the acts of the General Assembly approved March 3, 1919, and appearing in Crawford .& Moses’ Digest as sections 5962 et seq. This act requires the Insurance Commissioner to compile the figures showing the results of the business of stock fire insurance companies during the five years preceding December 31st of each year, and provides that “if it appears that for such five-year period the stock fire insurance companies doing business in this State have made an aggregate underwriting profit in excess of five per cent., the Insurance Commissioner shall have the power to order such reduction in rates as will reduce the underwriting profit on business thereafter done to five per cent. ’ ’ Sec. 5960, C. & M. Digest. Each five-year period is a unit for the calculation of underwriting profits, and the Commissioner’s finding thereon fixes the insurance rates for the first year after that period; and the rate for each subsequent year thereafter depends on the Commissioner’s finding for the five-year period immediately preceding.

This action of the Commissioner is made “subject to the summary court review as provided in section 7 hereof” (sec. 5969, C. & M. Digest), and pending this court review his orders are superseded.

The present action is such a review, and it is al-. leged in 'the complaint filed for that purpose that the Insurance Commissioner, in the discharge of the duties therein imposed, has attempted to compile the business for the five-year period ending December 31, 1919, but that such tabulation has been made upon an erroneous basis, in this, that the Commissioner has; undertaken to arrive at the underwriting profit by calculating the aggregate premiums received and losses and expenses actually paid during said period and ascertaining the ratio of losses and expenses paid to premiums received, which, according to his • compilation, was 88.79 per cent., and the Commissioner has treated this result as showing an aggregate underwriting profit for that period of 11.21 per cent, or 6.21 per cent, in excess of the 5 per cent, allowed by said act, and on May 13, 1920, he made an order requiring all stock fire insurance companies to make such reduction, on all premiums collected, on all policies written after said date, and, on June 7, 1920, notified the Arkansas Fire Prevention Bureau to take necessary steps to put such reduction in force. The insurance companies applied for a rehearing, which was granted, but after hearing the representatives of the companies the Commissioner adhered to his original ruling.

In filing this suit to have the order of the Commissioner reviewed and set aside, tlie companies alleged that the compilation was made upon an erroneous ¡basis, for the following reasons: Stock fire insurance policies are written for terms from less than a year aiid up to five years, and the full premium for the entire period is collected in advance. The policy used in the State of Arkansas is the standard form, and provides that, for a certain sum (the premium for the entire period), the company insures the insured for a given period. The policy may be canceled at any time at the request of the insured, or by the company by giving five days’ notice. Policies must be carried by the company for the entire period before the full premium is earned, or, if canceled, the unearned portion thereof must be returned to the policy-holder. At the end of the five-year period involved in the compilation a very considerable part of the premiums received by the company was still unearned. To arrive at a correct result for a given period to determine the actual underwriting profit requires the charge against the companies of premiums earned, instead of premiums received.

The national organization of fire insurance commissioners, many years ago, adopted a standard “annual statement” for fire insurance comapnies, which form has been in use in Arkansas for more than ten years. It is insisted that the structure of this statement shows that the 'Commissioner proceeded upon the wrong basis in arriving at the underwriting profit.

The finding of the Commissioner now under review is the second finding made by him under the requirements of the act of 1919 set out above. His first finding covered the five-year period ending December 31, 1919, and in making up this finding the Commissioner employed both methods, but ordered no reduction in the rate, because, from April 1, 1918, to September 1, 1919, the companies 'had imposed a surcharge of 10 per cent, to cover the extra hazard supposed to result from the state of war then existing, and as this surcharge has been annulled the Commissioner ordered no reduction in insurance rates. As the surcharge is now no longer imposed, nothing further will be said about it.

The Commissioner discovered, in compiling his first report, that the basis adopted made quite a difference in the result obtained, lie designates the basis which he adopted as the “paid-for basis,” and under it he has charged the companies with the actual premiums received during the five-year period and has credited them with actual losses paid and actual expenses paid for the five-year period. The companies contend that they should be charged with the premiums earned and credited with losses incurred and expenses incurred, and this method is designated by the witnesses as the premium earned 'basis.

The ■Commissioner testified that, upon discovering that there was a considerable difference in the results reached in the two methods, he submitted the question, as to the proper method to employ in ascertaining underwriting profits, to a meeting of rate experts representing the insurance departments of Kentucky, Oklahoma, Missouri, Minnesota, and Arkansas, held in St. Louis, Mis souri, on November 7 and 8, 1919, and that these gentlemen made the following report: “That premiums received and losses and expenses actually paid should be the basis on which to predicate for determining’ the factors on which to base underwriting profit. In this way calculations will be based on actual facts, whereas, on earned premiums and incurred losses results will flow which will effect a continuance of the very thing it is desired to avoid, namely, obtaining figures 'based upon estimates and assumed amounts. That income ami excess profits taxes are not proper items of expense.” He further testified that he adopted the paid-for basis because it was the easiest to calculate and apparently obtained the best results for the policy-holder, and that he could not make up his report on the premium-earned basis from the records in his office. Another reason assigned by him for the conclusion reached was that, if the companies were allowed credit for losses incurred, they might carry forward, from year to year, these incurred losses until they were, in fact, paid, and might, as the result of that action, obtain credit more than once for the same items. His chief clerk was of the same opinion and concurred in the opinion and-finding of the Commissioner. It appears, however, that, while both these gentlemen were experts in matters of accounting, neither qualified as an insurance expert, and it is apparent from their testimony that they have proceeded upon the assumption that they were vested with a discretion to determine what were underwriting profits, and that in reaching this conclusion it was their 'duty to adopt that method which operated to give the largest reduction in insurance rates.

The act under review has nothing to do with the investment end of the fire insurance business. It deals only with the underwriting end, and all parties agree that it was the legislative purpose to limit fire insurance companies doing business in this State to an underwriting profit of five per cent, and, as a means to that end, clothed the Commissioner with the duty and authority to raise or lower rates to produce that result, based upon the experience -of the companies for the preceding five-year period. It therefore becomes of controlling importance to determine what is meant by the phrase, “underwriting profit”.

In passing upon this question we conceive it to be our duty only to ascertain the legislative intent, and this must be done by interpreting the words which the Legislature itself has employed in expressing that intent. It is an accepted canon of construction that “where a word which has a known legal meaning is used in a statute, it must be assumed that the term is used in its legal sense, in the-absence of an indication of a contrary intent.” 26 A. & E. Enc. of Law (2nd Ed.) 607.

In the case of St. L. I. M. & S. R. Co. v. State, 102 Ark, 205, this court had occasion to define the term, “division point,” and, in doing so, said: “In determining ' what the meaning of these words is, we must look to see what is the usual and ordinary interpretation given to them by those using them, and also to consider them in reference to the subject-matter in the mind of the Legislature, as shown ¡by this statute.” Many oases to the same effect are cited in the ¡briefs of counsel for the insurance companies.

We think the undisputed evidence shows that the term “underwriting profit” has long had a definite, certain and well-known meaning in insurance circles. A number of witnesses of highest authority in the insurance business testified that the term was understood alike by all insurance men, and that the word “underwriting” refers to operations of the companies in accepting and carrying risks on the writing of insurance, and refers to that branch of the insurance business in contradistinction to the investment or banking end of the business, and that underwriting profit or loss is arrived at by 'deducting from earned premiums all incurred losses and incurred expenses. These experts testified that this definition and use of the phrase “underwriting profits” was of universal application in all insurance business, and that a different meaning was first given to it by the Insurance Commissioner of this State in his attempt to give effect to the act now under consideration.

Prior to the passage of this act in 1919, the Insurance Commissioner of this State was required to calculate the reinsurance reserved for unexpired fire risks of insurance companies by taking fifty per centum of the premiums received on all unexpired risks that have less than one year to run and a pro rata of all premiums received on risks that have more than one year to run and, “having charged against a company the reinsurance reserved as above determined, * * * * and adding thereto all ■other debts and claims against the Company, he shall, in case he finds the capital stock of the company impaired to the extent of twenty per cent., give notice to the company to make good its whole capital stock -within sixty days, and, if this is not done, he shall require the company to cease to do new business within this State. * * * * ’ ’ Subdivision 6, section 5951, C. & M. Digest.

The Insurance Commissioner testified that the term, “reinsurance reserve,” in the statute quoted, meant “unearned premium reserve,” and that the latter is the commonly used term.

It is quite obvious that this legislation treated the unearned portion of an insurance premium as a liability against the company, and not as an asset of the company. It cannot, therefore, be regarded as a profit, for the reason that the law requires the insurance companies to maintain a reserve against it. This section, 5951 C. & M. Digest, was enacted in 1875, and requires the Commissioner to charge all “debts and claims” against the. company, which necessarily includes all losses and expenses which have been incurred, whether they have been paid or not.

We think this statute defines the status of the unearned premium reserve. If it is in fact a liability, and not an asset, then it cannot properly be the basis of computing profits. It is not a profit, for the simple reason that it is not earned. It may never be. earned. The company could not use it for paying dividends or for other purposes of its own. Cook on Corporations, (7th Ed.) § 546, p. 1609. On the contrary, it must maintain a legal reserve against it, and if, adding to this reinsurance reserve “all other debts and claims against the company”, there is an impairment to the extent of twenty per cent, the Commissioner must declare the company not sufficiently solvent to do new business in this State.

The Commissioner says, however, that it is not the purpose of the reports made pursuant to this statute to enable or to require him to pass upon the amount of profits earned by the reporting companies, but only to determine their solvency. So it is. But if this is the proper method to determine solvency, it is necessarily the proper method to determine whether profits have been made. At least, this was the existing law when the act of 1919 was passed, and we must construe the two statutes together.

It is shown without question that the premium-earned basis is the method employed by all insurance companies in determining what profits have been earned and whether a dividend can be paid the stockholders.

Numerous very interesting cases are cited in the briefs of counsel for the insurance companies to the effect that unearned premiums cannot] be said to be profits.

The objection of the Commissioner to the adoption of the premium-earned basis, that he could not make a finding upon that basis from the reports of the companies on file in his office, is equally applicable to the basis which he did adopt, for he admits that it became necessary for him to pi'epare and send out to the companies special blank forms,- which he designated- as Schedule No. 6, before he could prepare his report in accordance with the basis which he had decided to adopt. It is also shown that, in support of the companies’ motion for a rehearing before the Commissioner, the companies offered to, and did, supply all the information necessary to make a report on the premium-earned basis, but the Commissioner refused to change his ruling, for the sole reason that he thought he had adopted the proper method. At the .time Schedule No. 6 was prepared by the Commissioner -for the purpose of making the finding required by section 8 of the act of 1919, a schedule numbered 5 was also prepared, tlie responses to which would have furnished the necessary data for making a finding in accordance with the premium-earned basis, and that schedule was prepared to fit into page 8 of the Convention Annual Blank, of which blank we shall have more to say.

This Convention Annual Blank takes its name from the fact that it was prepared and adopted by the Conven ti on of Insurance Commissioners of the different States, and is in universal use, and lias been for many years past. Page 8 of this convention blank calls for a tabulation made on the incurred or premium-earned basis of the business of companies all over tbe United States; while Schedule 5, prepared on a similar basis, restricts the report to the business done to this State alone, and the tabulation made on that basis by the Commissioner shows that there was no underwriting profit for the five-year period under review.

This difference is said to result from the fact that during the latter part of the five-year period the volume of insurance business in this State increased very largely and very rapidly. Much of this business then written,.and already paid for, will have to be ¡carried as outstanding risks by the various ¡companies beyond the five-year period under review. Under these circumstances there has been no underwriting profit if the same is computed according to the premium-earned basis.

Any question as to the manner of securing the necessary data to report on either basis may be disposed of by saying that the law gives the Commissioner the right to call for such data as he sees proper to have, and imposes upon the companies the duty to furnish it. Secs. 5960 and 5965, C. & M. Digest.

So far as the St. Louis meeting is concerned, it may be said that of the gentlemen who adopted this resolution only two testified in this case, besides Mr. Bullion, the Insurance Commissioner for this State, and those witnesses testified that they were proposing a method for the consideration of the National Convention of Insur- - anee Commissioners, and that the- method then proposed was looked on as being the most favorable one to the State and to the policy-holders, and as one easiest obtainable. and easiest figured. The resolution adopted át this St. Louis meeting, set out above, was embodied in a letter addressed to Mr. Joseph Button, Insurance Commissioner of Virginia, who was the chairman of the fire insurance committee of the National Convention of Insurance Commissioners. The Insurance Commissioners of Missouri and Kentucky were members of this committee, and at its meeting on April 18, 1921, both voted, with all the other members present, that the earned-premium and incurred method was the proper method to employ in requiring reports from the companies. This finding was embodied in a resolution then adopted. At a prior meeting of this committee in December, 1920, at which time the Commissioner from Arkansas was a member and was present, a sub-committee thereof recommended to the full committee that, in determining underwriting profit, earned premiums and incurred losses and expenses should be used, and that there should not be taken into account the banking end of the business. These recommendations were then adopted ¡by the whole committee, with the Commissioner from this State alone dissenting.

At the National Convention of the Fire Insurance Commissioners of the different States held December 7, 1921, the fire insurance committee made the following report, which was adopted without dissent by that body:

‘ ‘ Through legislative enactment varying degrees of control over fire insurance rates within their borders have been assumed by several States. All such laws are based upon the principle that rates between risks of substantially the same hazard must not be discriminatory, but some go further and require that they shall be no higher than to provide a ‘reasonable’ underwriting profit. In one State the percentage of such ‘reasonable’ profit is named, and in another a specific requirement is laid down that the conflagration hazard both within and outside of the State shall be taken into consideration.

“Further, as it is probable that in the future other States may enact legislation of similar effect, it is highly important that this body clearly express its convictions as to what constitutes a reasonable underwriting profit and a proper and uniform method of arriving at same.

“Two years ago at the convention session in Hartford this subject was referred to in a resolution, after which the fire insurance committee of the convention met with a committee appointed 'by the National Board of Fire Underwriters, both bodies realizing the great importance of having an agreement embodying the factors necessarily involved. While it was recognized that the National board had no supervision over rates, it was selected as the only National organization of fire insurance companies. Frequent and lengthy conferences of the committees were held at which the various features were exhaustively studied. The final joint meeting took place in New York in April last when the following was agreed to:

“1. Underwriting profit (or loss) is arrived at by deducting from earned premiums, all incurred losses and incurred expenses.

“2. No part of the so-called bunking profit (or loss) should be considered in arriving at the underwriting profit (or loss).

“3. Five years is the minimum period over which a dependable experience can be established.

“4. A conflagration is any loss in excess of a million dollars.

“5. The first million dollars of loss is chargeable to the State in which it originates, the balance being pro rated to all the States (including the one in which it originated) in proportion to the premium income of each State.

“6. A reasonable underwriting profit is five per cent, plus three per cent, for conflagrations. The three' per cent, allowance for conflagrations is subject to revision if and when the records of conflagrations to be collected by the National board show that such three per cent, is excessive or inadequate.”

This report is of course advisory in its nature, and binding upon no one, but it does show what these officers understood underwriting profit or loss meant.

It does not appear that the Commissioner of Arkansas attended this convention, although Arkansas is the State referred to in the report as having a fixed percentage of insurance rates. This report appears to have been adopted by the unanimous vote of all the Commissioners present.

■ It thus appears that underwriting profit or loss has a known meaning as the sum arrived at by deducting from earned premiums all incurred losses and incurred expenses, and that the term, as thus interpreted, has long been employed in the insurance business, and we must therefore conclude that it was so used in the act of 1919, nothing to indicate a contrary intention appearing in the act.

Having reached this conclusion, we should not be swerved from so interpreting it by any consideration of the results obtained. It may be said, however, in passing, that the fear expressed by the Commissioner that, if he adopted the premium-earned basis, losses would be pyramided, that is, credit would be given more than once for the same losses, appears to be without foundation. It is very clearly shown that this could not be done without deliberately falsifying reports, and a false report could, of course, be made on either basis. It is shown that the “Convention Form of Annual Statement” automatically takes care of this by requiring deductions to be made'of profits and credits taken, and in the same way any errors of estimation are taken care of by deductions in the next period.

The court below made the following findings: “The words ‘underwriting profit’ have had for a long number of years, and now have, a well known, established and defined trade meaning, to-wit, net premiums earned less losses and expenses incurred in the business of writing fire insurance, and that those words were used in that sense in the act under consideration in this case.” Upon this finding the court ordered that, in making up his tabulations, the Insurance Commissioner should use, in said calculation, the aggregate net premiums earned during the five-year period, as distinguished from the, net premiums received, and that he should use losses incurred during said period, as distinguished from losses paid, and should use expenses incurred, as distinguished from expenses paid.

It follows, from what we have'just said, that this finding and order of the court is correct, and it is approved.

The court below also found “that the Insurance Commissioner should allow as expenses that part of the income and excess profits -taxes and all other taxes paid or incurred to the United States government during said period which is properly apportionable to the underwriting business done in Arkansas.” We do not concur in this finding. Underwriting profits must, of course, be taken into consideration by the directing officers of the insurance companies in casting up their accounts to determine what sum has been earned; but our statute does not undertake to regulate earnings of the capital stock of the companies. The act does not deal with capital stock, nor dividends 'to be paid thereon. It deals with underwriting profits, and, as we have shown, that term has a well-defined meaning, and is arrived at by deducting from earned premiums all incurred losses and incurred expenses. The income taxes are based upon profits. The thing the Commissioner determines is not the general business outcome of the reporting companies, but their underwriting profits in this State. He has no concern at all in making the tabulations with the investment end of the insurance business, either in or out of this State. Insurance companies pay income taxes on their business as a whole; both the underwriting and investment ends are considered for that purpose. Insurance companies might sustain such losses on their general business, through conflagrations elsewhere, or through other causes, as to have no income taxes to pay; but this would not affect their underwriting profits in this State. In other words, for the purposes of this act, the State of Arkansas is the sole unit to be considered, and the underwriting profit in this State is the sole subject of inquiry. The Commissioner does not take into account the balance sheet of any particular company. Some companies may have income tax to pay, while others may not. He considers the companies in the aggregate, and not separately, and it is unimportant to him whether the general business of any particular company will require the payment of income taxes or not. He determines in solido the underwriting profit of all the companies for a given period and, in doing so, he should exclude any allowance for income taxes.

The court below also found “that the Insurance Commissioner should include in said tabulation the business of all stock fire insurance companies that did business in this State under license from the State during any part of said period.” We think the court was correct in this finding. The manifest purpose of the Legislature was to ascertain the result of the business done by all the insurance companies during the five-year period under consideration. It is unimportant what companies do the business. The thing to be ascertained is what was the result of the five years of business, and in arriving at that fact the Commissioner should take into account the reports of all companies covering any portion of the five-year period. If reports cannot be obtained from companies which have heretofore withdrawn from the State, their business, of course, cannot be included in the tabulation; but that fact affords no reason for excluding reports which are available from the companies which were not doing business at the end of the five-year period. Because the tabulation cannot be made absolutely accurate, by including all those companies which have done business in the State for any part of the five-year period, is no reason for not making the tabulation as nearly accurate as can be done by including reports which are available.

Upon all questions thus far discussed and decided by us, the findings of the court below were in favor of the insurance companies. The court below made a finding adverse to them, and from that finding the companies have appealed. This finding was that “the Insurance Commissioner is not required by the act under consideration to make any allowance for conflagration hazard.” We think the court was correct in this finding. It is a fact, as stated above, that, at the last National convention of the Insurance Commissioners of the different States, the Commissioners adopted a resolution to the effect that conflagration hazard should be taken into account 'in fixing rates.- But that body was not undertaking to interpret our statute, nor, as we have said, would we be bound by their action if they had done so. Their resolution dealt with the manner of determining reasonableness of rates, and their report shows that only one State had fixed a definite per cent, of underwriting profit, which State, as we have said, is our- own, thereby determining what was reasonable. That part of the resolution in regard to conflagration hazard was advisory to those Commissioners acting for States whose statutes provided for reasonable profits. In determining what is a reasonable profit it is no doubt proper to consider conflagration hazard, but presumptively our Legislature did this. It has fixed five per cent, as reasonable, and we cannot presume that the Legislature omitted any item which should properly have been considered. This finding of the court below is affirmed.

It follows, therefore, that the findings and decree of the court below, except in so far as it relates to the allowance for income taxes, is affirmed.

Mr. Justice Wood concurs except as to Federal income and excess profit taxes, which he thinks should be allowed as an expense of the business, that this tax should be apportioned, and the companies should receive credit for the income and excess profit taxes on the income and excess profits derived from the underwriting end of the business in this State.

Wood, J.,

(concurring in part and dissenting in part).

1. It is contended by the appellant that the method adopted by him to ascertain the underwriting profit is favorable to the State and to the people, and that the method contended for by the appellees is favorable to themselves and no others. On the other hand, it is contended by the companies that it would be destructive to the insurance 'business in this State to write insurance on rates fixed upon the basis of premiums received and losses and expenses paid instead of premiums earned and losses and expenses incurred. J. G. Leigh, the general agent for ten insurance companies, testified that it would be ruinous to the insurance companies if they were required by the act under review to write insurance according to rates fixed by the method adopted by the Insurance Commissioner in determining the five per cent, of underwriting profit allowed by the statute; and that such method would result in driving the insurance companies out of business in this State. If this statement be correct, then it is manifest that no greater calamity in a business way could befall the people of this State than the passage of this law. For, it is well known that adequate insurance is a basis of credit and security in practically all lines- of business, and the Legislature would be doing the people of the State an irreparable injury and. a great wrong to deliberately enact, laws that would paralyze commercial and other business transactions.

These respective contentions lead me to observe that if the Legislature intended by the use of the term “underwriting profit” to adopt'the method of computation used by the Commissioner to ascertain such profit, then it would be the duty of this court to so interpret the law, even though it had the effect of driving out every insurance company now engaged in business in this State. On the other hand, if it was the intention of the Legislature by the use of-the term “underwriting profit” to adopt a “trade term” which had a well understood and well defined meaning in trade circles, having certain definite and fixed methods of ascertainment by those engaged in the business of insurance, then it is the duty of the court to interpret the statute so as to give effect to the intention of the lawmakers as derived from the language of ihe enactment, regardless of whether such interpretation is favorable or unfavorable to the insurance companies or to the people of the State carrying insurance. In other words, the wisdom and policy of this law was addressed solely to the Legislature. Neither the Commissioner, nor the courts, out of any considerations of expediency, are authorized to give the act an interpretation which is plainly repugnant to the legislative purpose as expressed in the language of the act itself. We must interpret the act as we find it, regardless of the effect it may have on the insurance companies or those who buy insurance.

See Little Rock v. North Little Rock, 72 Ark. 195-201 and other cases cited in inv dissenting opinion in St. L. I. M. & S. R. Co. v. Webster, 99 Ark. 265-290-291. The judiciary has no power to impute to the General Assembly any other than an honest intention through its enactments to promote the public weal. Grigsby’s Criminal Law, 17, sec. 21; State ex rel. Linde v. Taylor, 33 N. D. 76, Am. Cas. 1918-A 538; People v. Glenn Co., 35 Pac. 302-4; U. S. v. Des Moines, etc., Co., 142 U. S. 510-44; Atchison, T. & S. F. R. Co v. State, 40 L. R. A. (N. S.) 1 and note, p. 29.

Mr. J. G. Leigh testified that he was the general agent for ten insurance companies doing business in Arkansas; that he wrote every word of the act under review — -“fought, bled and died for every word of it”; that it was his purpose to create a condition fair and equitable and just to the insurance companies and to the people of the State who were buying insurance; that he was not representing the insurance companies in drafting it; that they objected strenuously to some of its provisions. This testimony, of course, could only mean that he drafted the bill which the Legislature, through its appropriate committees, and otherwise, investigated, and approved by enacting the same into a law. It was exclusively within the legislative function to fix the maximum per cent, of “underwriting profit.” It could have designated a greater or less per cent, than the five per cent, named; or it could have left the matter entirely to the judgment and discretion of the Insurance Commissioner to determine what would be a fair and reasonable per cent, of “underwriting profit.” It could have prescribed the particular methods which the Commissioner should use in malting the computation to ascertain whether the companies had made a profit exceeding the, five per cent, named; or, if unnamed, the specific methods to be used in determining what was a fair and reasonable profit. This the law-making power did not see fit to do, but on the contrary expressly used the term “underwriting profit” without further definition or explanation. All of which unmistakably shows that the trade term “underwriting profit” was used in the technical sense, i. e., with the meaning which that term has in insurance circles. The testimony of witness Leigh showing the history and source of the act under consideration is illuminating, because it shows that the Legislature adopted the draft of the bill as it came from the hands of one whose position and long experience in the insurance business made him familiar with the meaning of the term “underwriting profit” and the methods used in insurance circles to determine same.

Mr. Leigh’s testimon}^ and that of every other insurance rate expert shows that in insurance circles and according to insurance terminology the words “underwriting profit” have one and only one definite and well understood meaning; that meaning is arrived at by one and only one definite method of calculation. That meaning is: “What the companies have left over from the premiums earned after deducting the losses and leixpenses incurred” during the period designated. All of the witnesses give the same definition in practically the same language. To quote from one is to quote from all. Frank M. Speakman, who was employed by the appellant in the examination of different insurance companies from time to time as consulting actuary, and who was not in the employ of, or connected with, any insurance company, testified: “I am familiar with the Arkansas act of 1919 under consideration and know that the phrase “underwriting profit’ used in the act lias had for a number of years among accountants and the insurance fraternity a well established and well defined meaning. It has only meant one thing, and that is the profit left over after the company has been charged with premiums earned andtaken credit for losses and expenses incurred. ’ ’

The record shows that the committee of the National Convention of Insurance Commissioners, composed of commissioners of eleven States, and the actuarial bureau committee of the National Board of Fire Underwriters recommended the same method of ascertaining underwriting profits as is shown by the testimony of the insurance rate experts above. The appellant alone dissented from the views of these committees.

Since the Legislature used the trade term “underwriting- profit” and nowhere in the act used any language indicating that it had employed this term in any other than a technical sense and with the meaning given it by those engaged in the insurance business, it must be conclusively presumed that the Legislature intended that the words “underwriting profit” should have the meaning given them in insurance circles. To ascertain what that meaning is, the testimony of insurance rate experts and the recommendation of the committees of the National Convention of Insurance Commissioners and of the National Board of Fir ' Underwriters were all competent evidence to prove the meaning of the term “underwriting- profit.” See National Union Fire Ins. Co. v. Dickinson, 128 Ark. 367. If not the undisputed, at least the overwhelming, weight of the evidence shows that the meaning of the term is as above set forth in the testimony of Leigh and Speakman. Unless we shut our eyes to the facts and refuse to respond to the preponderance of the evidence, and fail to apply the law applicable thereto, the only correct conclusion on this branch of the case is that reached by us and voiced through the opinion of Mr. Justice Smith. He has stated the reasons for the conclusion of the majority on this subject with great cogency and clearness and has cited the authorities to sustain the views there expressed. I know of no authorities to the contrary. I wish, therefore, to express my unqualified concurrence in all that he has said of the meaning of the words “underwriting profit” used in the statute. From my viewpoint, there is no well founded room for a difference of opinion.

Moreover, even if there had been no testimony in the record explaining the meaning of the technical term “underwriting profit” this court, applying business principles and correct rules of accounting, could have only reached the same conclusion without the aid of the testimony of insurance rate experts, that it has arrived at with such aid. For, to my mind, applying to the insurance business sound rules of bookkeeping and accounting —the tests applied in any ordinary business — the premiums earned represent the actual income or profits and the losses incurred (which includes expenses) represent (he losses. Therefore, deduct from the premiums earned the losses incurred, during any given period, and the result will show the net profit or loss for such period. For any given period this method represents a closed business transaction, and is a sound rule of computation. Any other would be mere speculation. See the able opinion of the House of Lords and Privy Council in Sun Insurance Office v. Clark, “House of Lords and Privy Council” Appeal Cases (1912) p. 443.

2. The statute makes any action of the Insurance Commissioner in the matter of determining whether or not the companies have made an aggregate underwriting profit in excess of five per cent, subject to “summary review in any court of competent jurisdiction.” Sections 5968 and 5969, Crawford & Moses’ Digest. The Insurance Commissioner, in making his computation, refused to allow the insurance companies credit for the Federal income and excess profits taxes as an element or item of expenses incurred, and refused to allow the companies credit as expenses incurred for such proportion of those taxes as should be borne by the underwriting end of the business in this State. The chancellor found that the “Insurance Commissioner should allow as expenses that part of .the income and excess profits taxes and all other taxes paid or incurred to the United States Government during the five-year period which is properly apportion-able to the underwriting business done in Arkansas.”

The majority of the court reverses the finding and decree of the chancellor in this particular and sustains the finding of the Insurance Commissioner. I find myself unable to concur with my associates in this conclusion. I am convinced that the chancellor was correct in his decree and finding in this as well as all of his other findings. His decree, in my judgment, should be affirmed throughout. As I understand, the undisputed testimony shows that the Federal income and excess profits taxes allocated to the underwriting end of the business in this State, incurred and paid during the five-year period, amounts to the sum of $72,000, or about one per cent, of the total expenses incurred. Under the statute the Insurance Commissioner is not allowed to order any reduction in rátes until there has been an underwriting profit in excess of five per cent. As I construe the statute, it guarantees to the companies a net profit, of five per cent, on the underwriting end of their business in this State. Now, there is no.net profit in the business of insurance, or in any other business for that matter, until all the expenses of every character, including both State and Federal taxes as well as every other legitimate and necessary expense of carrying on the business, have been deducted from the gross income of such business. There is no more reason for deducting the State taxes as a necessary expense of the business than Federal taxes. These taxes, both State and Federal, are burdens on the business that must be borne. There is no escape from them. Assuming, as we must, that the companies are doing an honest and legitimate business, the Federal income and excess profits taxes are inescapable expenses incident to the business; as much so as office rent, agency service, or any other legitimate expense required in the operation of the business. Would any bank, insurance company, mercantile firm, or corporation of any character, or any individual engaged in any business enterprise leave out of their loss account the taxes incurred, during any given period in casting up an account of profits and losses on such business for such period? Certainly not. No correct system of accounting would justify entering any amount to the credit of the surplus account in any business until it had been first ascertained that there was an excess of income over outlay in the necessary conduct of the business.

There is a vast difference between constitutions or statutes which merely protect public utilities in the right to a fair and reasonable return on their business and those statutes which guarantee a certain fixed per cent, or profit.. See Galveston Electric Co. v. Galveston, 272 Fed. 272. Our statute, as I construe it, guarantees the insurance companies doing business in this State during the period named, in the aggregate an underwriting profit of five- per cent. That amount is definitely named as the maximum limit of underwriting profit. But they are entitled to, and are guaranteed, that much before the Insurance Commissioner is authorized to order any reduction in rates. I cannot comprehend the logic that leads to the conclusion that these taxes are not a necessary part of the expenses incurred, because, forsooth, they are laid by the general government on the income and profits of the business in solido; that is, including both the underwriting and investment or banking end of (he business. These taxes are levied and paid, it is true, upon the business of the companies as, a whole. They are an expense and burden to the business as a whole, but the underwriting end necessarily bears its proportion of the burden, and, assuming that the books are properly kept, as we must, no doubt these taxes are properly apportioned and distributed respectively to the underwriting and banking ends of the business. If they are not, it is certain that they can and should be. In determining whether or not there is a profit in excess of the five per cent, guaranteed by the statute these taxes should be apportioned and the companies given credit for the amount so apportioned to the'underwriting end as necessary expenses incurred in carrying on that end of the business. See Consolidated Gas Co. v. Newton, 267 Fed. 231-259. Also Municipal Gas Co. v. Public Service Commission, 186 N. Y. Sup. 541-549.

If these taxes, as the proof shows, when apportioned to the underwriting business in Arkansas, amounted to about one per cent., then, if the Commissioner fails to allow the companies credit for these taxes as a part of their expenses, instead of receiving the five per cent, which the statute guarantees them, they would receive only four per cent. It is not for the Commissioner or this court to say that they are only entitled to four per cent, net profit when the statute expressly guarantees them five per cent. In re Mutual Telephone Co., P. U. R. Anno. 1921-B p. 209, it is held by the Public Utilities Commission of Hawaii in an able opinion by Carden, the chairman of the commission, that all taxes, Federal and territorial, should be allowed as proper expenses of operation. Adopting in substance the language of that commission, if income taxes are disallowed as incurred expenses of the business, the net result is that, instead of being allowed the five per cent, which the statute.guarantees, the amount really allowed by the Insurance Commissioner would be five per cent, less the one per cent, of income taxes which the companies are compelled to pay. It seems to me, therefore, that the income and excess profits taxes should be considered as a part of the legitimate expenses incurred in carrying on the business, and that the insurance companies do not receive a net clear profit of five per cent, unless they are given credit for these taxes in the computation made by the Commissioner. Such was the view of the learned chancellor. His findings and decree are correct in all particulars, and should be affirmed.

McCulloch, C. J.,

(dissenting). It seems manifest to me that the framers of the statute under consideration meant that the Insurance Commissioner should “compile the figure's showing the results of the business for the five years next preceding” by obtaining the same from the annual reports of statements required under another statute. Crawford & Moses’ Digest, § 5979.

The two statutes, taken in the order in which they should be considered with reference to the question before us, are as follows:

“Every insurance company, including* individuals, •partnerships, joint-stock associations and corporations, conducting any branch of insurance business in this State, must transmit to the Insurance Commissioner and State Fire Marshal a statement of its condition and business for the year ending on the preceding thirty-first day of December, which statement shall be rendered on the first day of January following, or within sixty days thereafter, except that foreign companies shall transmit their statement of business other than that done in the United States prior to the following first day of July, which statements must be in form, and state the particulars required by the blanks prescribed by the Insurance Commissioner and State Fire Marshal.” Crawford & Moses’ Digest, § 5979.

‘ ‘ The Insurance Commissioner shall, each year after the filing with him of the reports of the various fire insurance companies doing- business in this State, as required by law, compile the figures showing the results of the business for the five years next preceding the year in which the tabulation is made. If it appears that for such five-year period the stock fire insurance companies doing business in this State have made an aggregate underwriting profit in excess of five per cent., the Insurance Commissioner shall have the power to order such reduction in rates as will reduce the underwriting profits on business thereafter done to five per cent. Any reduction ordered by the Insurance Commissioner shall be effective on all policies written after issuance of such order and may, with the approval of the Insurance Commissioner, be applied to such class or classes of risks as the fire insurer, the rating- bureau or bureaus may select. Any action of the Insurance Commissioner in this connection shall be subject to -summary court review as provided in § 5968.” Id. § 5969.

■ If it was not the intention for the figures to be taken from the annual statement, there was no reason for referring to those statements, and the reference shows clearly, I think, that the intention was for the compilation and tabulation to be taken from the annual statements. Other information might become necessary in order to. complete the compilation, but the annual statements were intended to be the basis.

The statute provides that the “statements must be in form, and state the particulars required by the blanks prescribed by the Insurance Commissioner.” Now, the undisputed record is that the Insurance Commissioner lias always prescribed the form which has been adopted by the association known as the ‘ ‘ Convention of Insurance Commissioners,” and the form was commonly designated as the ‘ ‘ Convention Annual Blank. ’ ’ This form has been used exclusively up to this date, and the framers of the statute (§ 5969) are presumed to have taken cognizance of that fact in adopting the language which they used. They had in mind that the Commissioner would, in fixing rates of insurance, act upon the figures set forth in the statement made on the Convention Annual Blank. Now, it is undisputed that the form did not show or call for a statement of the net earned premiums in this-State, but, on the contrary, it called only for net premiums received. It did not call for nor contain a statement of incurred losses, but called for losses paid. Schedule 5, referred to in the opinion of the majority, was not a part of the Convention Blank, and was never used in any annual statement. So tlie Commissioner concluded — correctly, I think — that his duty was to base the rate of premiums for the succeeding year on what the annual reports showed — net premiums received and losses actually paid. If it were otherwise intended, it would be necessary for the Commissioner to obtain from the companies additional information as to unearned premiums to be credited at the end of the five-year period and as to earned premiums to be charged in the beginning of that period which had been received during* the prior years. The Commissioner would also have to obtain additional information as to the differences between losses paid and incurred losses.

It should be borne in mind that the statute under consideration contemplates, not a single instance of rate-fixing, but a continuing plan or scheme for fixing insurance rates year after year, based on earned profits during the preceding five-year period. The statute does not require absolute accuracy in ascertaining the earned profits for the preceding period, an approximation being all that could be hoped for in the adoption of a general plan for the ascertainment of values or profits.

The Insurance Commissioner was clothed with authority, and a certain discretion was vested in him, to adopt details which would work out approximately accurate results — not for a single period, but from year to year. In the first place, the Commissioner was authorized to determine and prescribe the form of blank to be used and the substance of the statements to be made therein. He was next directed by the later statute to ascertain from these annual statements the nearest obtainable approximation of the profits derived from the insurance business in Arkansas during the preceding five-year period and to fix the rates based upon those profits. Whatever difference there may be shown between the plan adopted by the Commissioner and that insisted upon by the insurance companies concerning the rates to be fixed for the particular year now under review, I cannot conceive that it would make any substantial difference in the future which of the plans should be adopted, for, if the rate is to be readjusted each year, any losses in profit during one period will be shown in the next period and the rate correspondingly increased or reduced. If, in fixing the rate for a given year, the unearned premiums at the end of the preceding- five-year period must be deducted, then it follows, as before stated, that the premiums earned at the beginning of that period which were received during the preceding period-must also be charged in determining the amount of net profits. So it is with the difference between the plan for accepting incurred losses as the basis of profits, rather than losses paid. The difference between the two will necessarily be developed in the next period, so, after all, it will be broad as it is long.

Certainly the plan adopted by the -Commissioner is commendable in the fact that it is definite and the facts are more definitely and reliably ascertainable than under the plan proposed by the companies.

It seems to me that the most that is involved in the present lawsuit is that the companies are seeking to dictate the method of ascertaining profits, for the reason that it suits them in this particular emergency to claim credit for unearned premiums rather than permit the Commissioner to prescribe the plan, as the statute directs.

The question for us to determine in passing upon the validity of the plan adopted by the Commissioner is, not whether it'has proved inaccurate in a single instance, but whether it is a reasonable plan which will work out approximately correct results from period to period.

I cannot agree with the court that there is anything at all in the evidence in this case which tends to show that the term “underwriting profits” has a fixed and definite meaning established by general custom. All that the evidence shows is that there is, and has been for a long time, a prevailing custom with insurance companies of ascertaining their profits 'by deducting unearned premiums. This is not a definition of the term, but merely a customary method of ascertaining the results. It is not a. fixed definition which the lawmakers are presumed to have had in mind when when they enacted the statute, for it is obvious from the language of the statute that it was meant to vest in the Commissioner the power and discretion to adopt a plan for ascertaining what profits have been earned from time to time in fixing the rates for the ensuing year.

I also dissent from that part of the opinion of the majority holding that profits earned by companies which have withdrawn from the State prior to the end of the stated period should be considered in fixing the schedule of rates. The statute, as I have already shown, contemplates that the figures should be compiled from the annual reports made by the companies doing business in this State, and if they have withdrawn from the State there are no annual reports made by them from which the figures can be compiled.

I agree with the majority in holding that the companies are not entitled to credit for the amount of income and excess-profit taxes nor for allowances for what is termed ‘ ‘ conflagration hazard. ’ ’

Mr. Justice Humphreys concurs in this dissent.


source: Caselaw Access Project

author: Humphreys, J.

license: Public Domain

text:
    Hines v. Johnson.
    Opinion delivered January 30, 1922.
    1. Death — damages not excessive when. — In a suit for the death of a seven-year-old boy, a verdict for $3,000 held not excessive where the suit was for compensatory damages to the next of kin as well as damage to estate of deceased for pain and suffering.
    2. Appeal and error — weight of evidence. — The weight of evidence is for the jury, and not for the appellate court.
    3. Railroads — negligence in operation of trains. — In an action for the death of a child struck by a freight train on a bridge, evidence held to sustain a finding of negligence in operating a train without maintaining a lookout.
    4. Railroads — negligence—instruction.—In an action- for the death of a child seven years old, struck by a freight train on a bridge, an instruction that if deceased was upon the track in a perilous position, and the train or some part thereof ran over him and fatally injured him, and the employees of the train, by keeping a constant lookout and using ordinary care, could have avoided such injury, and failed to do so, the jury should find for the plaintiff, held proper.
    5. Appeal and error — erroneous instruction — harmless error.— In an action for the death of a child run over by a freight train, an instruction to find for plaintiff if the-train or some part of it ran over deceased was not prejudicial to defendant in submitting the question whether the child was injured by an engine or.a box car, contrary to defendant’s theory that the engine struck him, since, if defendant was negligent, it was responsible whether the child was struck by the engine or by the -box-car.
    Appeal from Benton Circuit Court; W. A. Dickson, Judge;
    affirmed.

      James B. McDonough, for appellant.

      Rice & Rice, and J. W. Nance, for appellee.
   Humphreys, J.

Tliis case is before us on a second appeal. On the first appeal it was reversed because tbe trial court instructed that the right of recovery for the loss of the services of the deceased during minority was in the mother, instead of in the father, as he was living at the time of the death of the child and entitled to inherit from the child as next of kin under the statute of descent and distribution. The trial, upon the remand of the case, resulted in a verdict and judgment against appellant in die sum of $3,000, from which, is this appeal.

Appellant’s first insistence for reversal is that the verdict is excessive. The contention is made that no part of the recovery was for pain and suffering, as the complaint was for a recovery of compensatory damages only to the next of kin, and that $3,000 is an excessive allowance for compensatory damages alone. We cannot agree with appellant that the allegations of the complaint failed to allege pain and suffering as an element of damage. The suit was instituted by Ethel Johnson as the administratrix of the estate of Charles M. Johnson, deceased, and is one cause of action for all purposes. It was in no sense an individual suit of Ethel Johnson. All allegations contained in the complaint must be regarded as allegations setting forth a cause of action in favor of the estate of Charles Johnson, deceased. The allegation, therefore, of pain and suffering in the complaint must be treated as an element of damage claimed by appellee in her representative capacity for the benefit of the estate. The evidence tended to show that the deceased child endured much pain and suffering before its death. We cannot say that $3,000 on its face was an excessive allowance, covering, as it did, all alleged elements of damage, compensatory as well as for pain and suffering of the deceased.

Appellant’s next contention for reversal is that the verdict is not supported by any substantial evidence. The substance of the evidence on the first trial was set out in the opinion on the first appeal and will be found in 145th Arkansas Reports, page 592, under the style of Hines v. Johnson. The evidence on the second trial is not materially different from the evidence at the first trial. Appellant introduced three witnesses who did not testify on the first trial, namely, L. E. DeGroate, W. M. Glande and Mrs. Norah Hudspeth. DeGroate and Glande, who were brakemen on the south-bound train, which passed the north-bound train at the station, testifled that they were the first to get to the deceased; that he was dead when they got to him; that they picked him np and carried him off the bridge to the west of the track;, that Mrs. Hudspeth arrived immediately after they did this and spread her apron over the boy to prevent the mother, who had not yet arrived, from observing his mangled condition. Mrs. Hudspeth testified that she arrived at the scene of the accident before the mother of deceased and spread her apron over him to prevent his mother from seeing his condition when she came; that the child was dead, and had-been removed from the bridge when she got to him. It will be observed that the testimony of these three witnesses is merely contradictory of the testimony of appellee, her daughter «and son, who testified, in substance, that they were the first to reach the scene of the injury, and that the child lingered and suffered nearly an hour before it died. The additional testimony is corroborative of the testimony adduced by appellant in the first trial, but it does not materially change the case made by the testimony adduced on the first trial. It simply strengthened appellant’s case upon the facts and left a conflict in the evidence to be settled by the verdict of the jury. The weight of the evidence is a matter for determination by the jury, and not by the court. According to the evidence, in its most favorable light to appellee, this child wandered on the walkway of the bridge in close proximity to the track, and in running towards the north stubbed its toe on a nail near the east side of the walkway and fell in a northeasterly direction towards the track, across the west rail, and remained there until struck and fatally injured by the engine of a freight train, rapidly approaching from the south; that, although approaching and near a road crossing, signals of approach were not given and a lookout was not kept by those operating the train; that the track to the south, from which direction the train approached, was straight for a mile. This evidence, if true, which was a question for the jury to determine, was substantial and sufficient to support a verdict based upon the alleged negligence of appellant’s servants in operating the train that struck and killed the child.

Appellant’s next insistence for-'reversal is that the court erred in instructing the jury upon the lookout and warning statutes. We ruled upon the former appeal that the facts, not materially different from the facts of the present appeal, warranted an instruction upon both statutes. The reasons for the ruling were fully stated in the former opinion, and we deem it unnecessary to reiterate them.

Appellant’s next insistence for reversal is that the court erred in instructing the jury that they might assess damages resulting from conscious pain and suffering endured by deceased, if the proof showed that he endured any conscious pain and suffering on account of the injury before he died: The argument is made that the complaint only prayed for compensatory damages, and not for damages to the estate on account of pain and suffering by deceased. In response to appellant’s contention that the verdict was excessive, we construed the allegations of the complaint as broad enough to cover damage to the estate on account of pain and suffering of the deceased.

Appellant’s last insistence for reversal is that the court erred in giving appellee’s requested instruction No. 4, which is as follows:

“If you find that the deceased was upon the railroad track in a perilous position in front of a train as it approached, and you further find that said train or some part thereof ran over and fatally injured Charles Johnson, and you further find that the employees of said railroad train, by keeping a constant lookout and using ordinary care, could have avoided such injury, and that they failed to keep such lookout, and by reason of such failure the injury occurred, you should find for the plaintiff.”

The argument is made that there was not sufficient substantial evidence tending* to show that the child, was in a perilous position in front of the train as it approached to warrant the instruction. There was a walkway on the bridge three feet west of the west rail of the track for the use of employees in walking over the bridge. According to appellee’s evidence, the child was running on this walkway towards the north as the train was approaching from the south. The child was small, being only seven years of age. We think a child of tender years running over a bridge on á walkway in such close proximity to the railroad track was in a perilous situation, and must be so regarded by employees operating the train.

Again, it is argued that the instruction is erroneous because it submitted to the jury the question of whether the child was injured by an engine or a box car when the theory of appellee was that an engine struck and injured the child. In the first place, we do not think the form of the instruction could have prejudiced appellant. If the child running in front of the train was in a perilous position, and the injury could have been prevented had the employees kept a proper lookout and used proper care, then the appellant was responsible for the injury, whether it was struck by the engine or a box car. In the next place, learned counsel for appellant does not fully state appellee’s theory of how the injury occurred. Appellee’s theory was that the child’s arm was cut off by the engine and in attempting to rise was struck on the head by a box car. In other words, appellee’s theory was that deceased was injured by.both the engine and a box car. We think the instruction correctly declared the law as applicable to the facts.

No error appearing in the record, the judgment is affirmed,


author: Humphrey's,- J.

text:
    Youree v. Ralls.
    Opinion delivered January 30, 1922.
    1. Pleading — amendment changing nature of complaint. — An amendment of a complaint alleging a conversion of a partnership property held not to change the general nature of a complaint asking for a partnership settlement and accounting.
    2. Appeal and error — issue not raised below. — The defense of fraud, not presented by the pleadings nor made an issue in the trial court, cannot be raised on appeal as ground for reversal.
    Appeal from Benton Chancery Court; Ben F. Mc-Mahan, Chancellor;
    affirmed.

      Tom Williams, for appellants.
    The chancery court erred in taking jurisdiction of this cause. It was a suit for conversion.
    , He who comes into equity must do equity. 67 Md. 542; 114 N. Y. 371; 64 Conn. 101; 129 Iowa 694.

      A. L. Smith, for appellee.
   Humphrey's,- J.

Appellee instituted suit against appellants in the Benton Chancery Court for a partnership settlement and accounting growing out of the operation of a restaurant in Siloam Springs, Arkansas, known as the Club Cafe. In the original bill appellee alleged that he was the owner of an undivided one-half interest in the stock, fixtures and good will of the restaurant by joint purchase with appellant E. B. Allen, on the 22nd day of December, 1919, from S. A. Campbell for a consideration of $1,600; that each paid half of the consideration, and a joint bill of sale for the property was executed to them by said Campbell; that a few days after •the purchase thereof Allen entered into possession and active management of the restaurant; that he continued to conduct the business until early in January, 1920, and refused to render any accounting, at which time he sold all his interest therein to appellant F. W. Youree for $700; that- Youree refused to recognize appellee’s interest in the business and property, and refused to render an accounting of the proceeds derived from the conduct of the business, and later sold and delivered the possession of the entire business and property to one Muller for a consideration of $1,100. Appellee later filed an amended bill, alleging a conversion of his interest in the business and property, and prayed for a decree for $800, the alleged value of- an undivided one-half interest therein, and damages in the sum of $200, or for a decree in the total sum of $1,000.

To the bill and amended bill appellants filed an answer denying that appellee was the owner of an undivided one-half interest in the business and property, and denying any indebtedness to appellee growing out of the conduct of the business, and praying for a dismissal of the bill and amended bill for want of equity.

The cause was submitted to the court upon the pleadings and evidence, which resulted in a decree in favor of appellee for $800. This decree was subsequently set aside on account of newly discovered evidence, over the objection and exception of appellee. The cause was again submitted, and a decree entered in favor of appellee for $400, from which both parties appealed to this court.

The evidence is in sharp conflict as to whether Campbell received $1,200 or $1,600 for the stock, fixtures and good will of the restaurant. The price agreed upon between Campbell, Allen and appellee, when all three were present, was $1,600, and each gave Campbell a cheek for $800. Campbell collected appellant Allen’s check, but returned appellee’s check to him, and; according to the statements of Campbell and appellee, accepted in lieu thereof $400 in cash and a mortgage for $400 on the undivided one-half interest in the restaurant. The note was subsequently paid. There is some positive proof and strong circumstances tending-to show that the cash payment of $400 was either never paid, or if paid was immediately returned by Campbell to appellee. The testimony to the effect that the cash payment of $400 was a mere subterfuge is so strong’ that we are inclined to agree with, the chancellor in his finding that the true consideration for the sale and purchase of the restaurant was $1,200, and that appellee only paid $400 of the sum, and that in truth and fact he only acquired an undivided one-third instead of an undivided one-half interest in.the business.

The evidence disclosed that appellant Allen sold such interest as he had in the property to appellant Youree, but before doing so he excluded appellee from the possession of his undivided one-third interest or right to,participate in the proceeds of the business, and that after Youree obtained possession thereof he likewise excluded appellee from possession thereof and refused to recognize his interest or to account to him for the proceeds of the conduct of the business, and later sold the entire business to a third party, who was not made a party to this suit.

The chancery court found that the property had been changed in form so that it was impossible to restore appellee his undivided interest in the property and business in kind,, and rendered a decree against appellants for $400. We think this finding and decree the only practical method of compensating appellee for his undivided one-third interest in the restaurant.

Appellants contend that the decree should be reversed upon the ground that the amendment to the bill changed the action into a suit at law for conversion of the property, and that the chancery court had no jurisdiction of the cause of action. Appellants did not object to the jurisdiction of the court on account of the amendments to the original bill. Neither do we' think that the amendment alleging a conversion of the property changed the general nature of the bill, which was for a partnership settlement and accounting, clearly within the jurisdiction of the chancery court.

Appellants also insist that appellee should not be heard to complain in a court of equity because of imposition and fraud practiced by bim upon appellant Allen. Tbe issue of fraud was not presented by the pleadings, and tbe cause did not proceed upon that theory in tbe trial court. Tbe issue presented by tbe pleadings, and tbe theory on which the case was tried was that appellee owned no interest in tbe business and property because be bad paid no part of tbe consideration therefor. It was disclosed by a preponderance of tbe evidence that appellee paid $400 in consideration for tbe property, and there is a sharp conflict as to whether be paid any more. Tbe issue of fraud as a defense, not having been presented' by tbe pleadings and evidence or contended for in tbe trial court, cannot be presented in this court as a ground for reversal of tbe decree.

No error appearing in tbe record, tbe decree is affirmed.


author: McCulloch, C. J.

text:
    S. A. Robertson & Company v. Lewis Rich Construction Company.
    Opinion delivered February 6, 1922.
    L. Garnishment — jurisdiction of subject-matter. — An action begun in the circuit court on an account for $58 and on 46 notes for $10 each was not within the court’s jurisdiction, and a garnishee could not be held therein.
    2. Pleading — amendment of complaint — new cause of action. — . Where a complaint in the circuit court alleging a cause of action on an account for $58 and on 46 notes for $10 each was amended by alleging a cause of action on an account for $546.07, the amendment introduced a new cause of action within the court’s jurisdiction, which was tantamount to the commencement of a new action.
    3. Garnishment — hew cause of action — process.—Where a writ of garnishment was issued in an action of which the court had no jurisdiction, and an amended complaint was subsequently filed alleging a new cause of action within the court’s jurisdiction, the garnishee was not liable unless brought into court under new process.

      Appeal from Prairie Circuit Court, Southern District; George W. Clark, Judge;
    affirmed.

      Emerson, Bonham & Shepherd, for appellant.
    The court erred in quashing the writ of garnishment and dismissing the garnishee (appellee), and at the same time holding the „ amended complaint good. The right to amend pleadings is thoroughly established. 55 Ark. 200; sec. 1239, C. & M. Digest.
    Defects in pleadings could only be taken advantage of by the defendant, not the garnishee. 63 111. App. 289; 21 Ind. 280.
    The filing of the amended complaint 'dated appellant ’s rights back to the time of the filing of the original complaint (33 Ark. 251), and it was error to discharge the garnishee (appellee) from liability for any sums he might have owed the defendant at the time of the service of the garnishment writ, as the service of such writ operates as a transfer of the amount due by the garnishee to the original defendant to the judgment creditor. 6 Ark. 391.
    The present action was one upon account, and not upon notes, and is very similar to the case in 78 Ark. 490, where it was held that the written memoranda were not orders or notes, but a suit upon account. See also 59 Ark. 86.

      Chas. B. Thweatt, for appellee.
    By the filing of the amended complaint a new suit was instituted. 59 Ark. 446; 70 Ark. 325; 33 Ark. 6,87; 49 Ark. 99.
    The garnishment statute must be strictly construed. 96 Ark. 470; 29 Ark. 470; 20 Cyc. 1032. And to permit a judgment against a garnishee, based upon a different cause of action from that upon which the writ was issued would not be a compliance with the statute. 75 Ark. 465; 94 Ark. 281.
    No jurisdiction was acquired of the garnishee based upon the original complaint, and no writ was issued under the amended complaint.

      The circuit court had no jurisdiction. Each of the memoranda constituted a separate cause of action, and each was for less than $100. The separate and not the aggregate amounts ■control. 89 Ark. 435; 85 Ark. 213; 24 Ark. 177; 9 Ark. 466; 3 Ark. 494.
    It is immaterial that defendant failed to appeal from the judgment against him, since the court did not have jurisdiction of the subject-matter. Jurisdiction cannot be gained by consent of parties. 134 Ark. 334; 48 Ark. 156; 90 Ark. 198; 34 Ark. 399; 85 Ark. 213; 33 Ark. 31.
   McCulloch, C. J.

Appellants are merchants and instituted this action against the defendant, Thomason, to recover the sum of $546.07. At the commencement of the action they sued out a writ of garnishment against appellee (a corporation) as garnishee, alleging that appellee was indebted to the defendant in the sum of $1,000. In the original complaint it was alleged that Thomason was indebted to appellant in the sum of fifty-eight and 96/100 dollars for goods and merchandise sold and delivered, the particulars of which were set forth in an exhibited account, and that Thomason was further indebted to appellants in the sum of four hundred eighty-seven. and 11/100 dollars, “as evidenced by forty-six promissory notes, as follows.” Then is set forth forty-six separate paragraphs, each describing a note for the sum of $10, giving date of execution, date of maturity and interest rate. Neither copies of the notes nor the originals were filed as exhibits with the complaint, but the complaint contained a statement that the original notes were held subject to the orders of the court.

There was a demurrer to the complaint, which the court does not seem to have passed upon, but on the filing of the demurrer appellant filed an amended complaint stating that the defendant was justly indebted to appellant “in the sum of $546.07 on account for goods and merchandise sold and delivered by the plaintiff to the defendant during the year 1920, memoranda of which were attached hereto, together with all the credits to which defendant is entitled, leaving dne and unpaid the sum • above mentioned. ’ The amended complaint contained the further statement that appellee “is'indebted to the defendant, H. B. Thomason, in the sum of $800.” With the amended complaint there were filed, as exhibits, copies of forty-six written instruments, all in the following form except as to dates, amount and terms of payment, each being for the sum of $10.

“$10.00

Screeton, Ark., 8/4/1919.

“Received of S. A. Robertson & Co.

“Merchandise Coupon No. 1098

“Good for $10.00 which I agree to pay for within thirty days from date, with interest at the rate of 10 per cent, per annum from maturity until paid.

• “H. B. Thomason.”'

There was no further process issued against either the defendant or against appellee as garnishee. The court thereupon entered a judgment dismissing the garnishee, but overruled a demurrer of the defendant and rendered judgment against him for the amount of the debt. There has been no appeal prosecuted by the defendant Thomason, and the plaintiffs alone have appealed.

It will be observed from a consideration of the complaint that it declares upon account in the sum of $58.96, and 46 promissory notes, each for the sum of $10. The action was commenced in the circuit court, and since each of the separate causes of action set forth in the complaint were for less than the sum of $100, the court had no jurisdiction of the subject-matter of the action. American Soda Fountain Co. v. Battle, 85 Ark. 213. This being true, the garnishee could not be held in a case where there was no jurisdiction of the subject-matter of the principal action. The amendment, if it bei construed to state a cause of action upon an account and not on the written instruments, the same as in the original complaint, sought to introduce a new cause of .action within the jurisdiction of the court, and this was tantamount to the commencement of a new suit (Wood v. Wood, 59 Ark. 441; Patrick v. Whitely; 75 Ark. 465), and the garnishee was not liable unless brought into court under new process. Schiele v. Dillard, 94 Ark. 277.

The court was correct therefore in refusing to hold the garnishee and in dismissing the original garnishment for want of jurisdiction.

Affirmed.


text:
    National Union Fire Insurance Company v. Crabtree.
    Opinion delivered February 6, 1922.
    1 Insurance — waiver of proof of theft loss. — Where insurer’s local agent, by a promise to look after the matter of theft of an ' insured car, and to see that the policy was paid unless the car was found in 60 days, lulled insured into a feeling of security, and thereby induced him not to make proof of loss, this constituted a waiver of loss,'if the agent had authority to waive it.
    2. Insurance — authority of agent to waive proof of loss. — A local insurance agent having authority to adjust small losses has apparent authority to adjust all losses and waive proof of loss.
    3. Insurance — waiver of proof of loss — authority of local agent. — A local agent of an insurance company having power to issue policies and collect premiums, has apparent authority to adjust losses and waive proofs of loss.
    4. Insurance — penalty and attorney’s fee — theft insurance.— The statute imposing a penalty and attorney’s fee upon fire, life, health or accident insurance companies failing to pay loss within the time specified in the policy (Crawford & Moses’ Dig., § 6155), being penal, should be construed strictly; and does not apply to a policy insuring an automobile against loss by theft.
    Appeal from Miller Circuit Court; George B. Ha/ynie, Judge;
    reversed in part.

      Arnold & Arnold, for appellant.
    The court erred in assessing damages and attorney’s fees. Sec. 6155, C. & M. Digest; 94 Ark. 578.
    ' Failure to make proof of loss was not waived by the company. 67 Ark. 584; 13 Ency. Ev. 1020; 29 Ency. ,Ev. 1105.

      M. E. Smderson, for appellee.
    There was no error in allowing attorney’s fees and assessing damages. 94 Ark. 578; 86 Ark. 115.
    Failure of defendant to preserve its exceptions to instructions in the motion for new trial waived its right to complain of the court’s ruling. 131 Ark. 404.
    The evidence was sufficient to show the agent’s authority. 122 Ark. 357; 100 Ark. 212; 120 Ark. 268; 130 Ark. 86.
    The act of the agent, within the scope of his agency, binds his principal. 132 Ark. 371; 103 Ark. 79; 94 Ark. 227.
   McCulloch, C. J.

Appellant is a foreign corporation engaged in the insurance business, and issued to "WAR. Crabtree, one of the appellees, its policy insuring in the sum of $900 against loss ¡by theft of his automobile. The automobile was stolen a few months after the issuance of the policy and was never recovered. The policy was issued by a local agency having express authority from appellant to solicit and receive applications, sign and deliver policies and collect premiums. Immediately after the theft occurred, Crabtree notified the local agents in accordance with the terms of the policy, which provided that immediate notice should be given such agents in the case of loss. The policy further provided that proof of loss should be made within sixty days. Crabtree had repeated conversations with one of the local agents, according to his testimony, in which he gave the agent information concerning the description of the car, and he testified that the agent, after obtaining the necessary information, made this statement to him: “We look after the car for you; if we don’t get it inside of sixty days, we will pay you your money, you’ll get paid for it. You can just go home and rest contented now; you needn’t worry about the car; we’ll find the car or pay for it inside of sixty days.”

Proof of loss was not furnished as required by the policy, and this • suit was instituted by Crabtree, with whom was joined Williamson & Timberlake, who held a mortgage on the car executed prior to the issuance of the policy.

There were two defenses offered in the answer,— one that there was a breach of the conditions of the policy concerning incumbrance on the property insured, and the other the failure of the assured to make proof of loss.

There was some testimony adduced tending to show that at the time the policy was issued the assured informed the local agent of the fact that the car was mortgaged, and this question was submitted to the jury under proper instructions. It is not contended that the evidence is insufficient to support the finding in favor of appellees on that issue, nor it is contended that the facts, as they might have been found by the jury, were not sufficient to constitute a waiver of this breach. Commercial Fire Ins. Co. v. Belk, 88 Ark. 506; German-American Ins. Co. v. Humphrey, 62 Ark. 349, and other cases.

The sole ground urged for reversal is that there was no waiver of the failure to furnish proof of loss, for the reason that the local agents had no authority to make such waiver. It must be conceded that there was no waiver unless it was within the scope or apparent scope of the local agents ’ authority to adjust losses and waive proof of loss; if not, there is no waiver in this case and there can be no recovery. The question of liability, therefore, turns upon the authority, or apparent authority, of the local agents to make such waiver. If, as stated by appellee Crabtree, the local agent by a promise to look after the matter and to see that the policy was paid unless the car was found within sixty days, lulled him into a feeling of security and thereby induced him not to make the proof of less, this constituted a waiver of the forfeiture, if the agent had authority to do so. Liverpool & L. & G. Ins. Co. v. Payton) 128 Ark. 528. One of the local agents testified as a witness and stated that he had authority from the company not only to solicit and receive applications and issue policies and collect premiums, but also to adjust losses under the sum of $100 . in amount, and that he frequently adjusted larger losses upon specific instructions. We are of the opinion that the authority to adjust a small loss was sufficient to create apparent authority to adjust all losses, for the reason that those who dealt with the agents were not bound by private restrictions upon the agents’ authority of which they had no notice. Three States Lumber Co. v. Moore, 132 Ark. 371. Besides that, we have decided in several cases that authority to a local agent to effect insurance, countersign policies and collect premiums gives apparent authority to make adjustments of losses and to waive proof of loss. Citizens’ Fire Ins. Co. v. Lord, 100 Ark. 212; Concordia Fire Ins. Co. v. Mitchell, 122 Ark. 357; Insurance Co. v. Payton, supra.

The earlier case of Burlington Ins. Co. v. Kennerly, 60 Ark. 532, is in conflict with the later decisions cited above in that it holds that authority to sign and issue policies does not embrace authority to make adjustments and waive proofs of loss, but that case must be deemed to have been overruled to the extent that it is in conflict with the later cases. It must therefore be treated as the settled rule in this State that a local agent for an insurance company, having power to issue policies and collect premiums, has apparent authority to adjust losses and waive proofs of .loss. We are of the opinion, therefore, that the evidence Was sufficient to sustain the findings of the jury and that the liability of the com•pany for the amount of the policy has been established.

The court err.ed, however, in rendering judgment for penalty and attorney’s fees. The imposition of penalties and attorney’s fees is limited to suits against fire, life, health and accident insurance companies, and the' statute does not apply to a suit for loss caused by theft under that kind of insurance. Crawford & Moses’ Digest, § 6155. We held, in the case of Home Fire Ins. Co. v. Stancell, 94 Ark. 578, that the statute, being penal, should not be held to apply except in cases falling within its particular terms. We decided in that case that the statute did not apply to a loss caused by a cyclone under a policy of insuring against that character of loss.

The judgment will be reversed as to the attorney’s fees and penalty, but affirmed as to the recovery of the amount due under the policy.