State Ex Rel. Meade v. Marion Superior Court

174 N.E.2d 408, 242 Ind. 22, 1961 Ind. LEXIS 204

• Court: Indiana Supreme Court
• Decided: May 3, 1961
• Docket: 29,992
• Status: Published

Opinions

Jackson, J.

Relator has filed an original action in this court for a Writ of Prohibition and Mandate to restrain respondent from proceeding further in cause No. S-60-5156 in respondent court, and to require the respondent, Walter M. Bell, Judge of said Court, to expunge from the records the order requiring the production of certain books and records. We issued the temporary writ.

It appears from the record that the relator is a resident of Marion County, Indiana, is President and a Director of Farm and Home Insurance Company, an Indiana corporation organized and existing under the insurance and corporate laws of this state, and presumably engaged in the insurance business as defined by Acts 1935, ch. 162, §1, p. 588, being §39-3203, par. (d), Burns’ 1952 Replacement.

It further appears that relator is President and a Director of Farm and Home Agency, Inc., an Indiana corporation, allegedly exclusive general agent for Farm and Home Insurance Company. It further appears that Farm and Home Agency, Inc. owns more than seventy-five (75) per cent of the issued and outstanding stock of Farm and Home Insurance Company, and that the same persons are officers and directors of both corporations.

The original action entitled H. W. McKinney and Rachelie McKinney in behalf of themselves and all other stockholders of Farm and Home Agency, Inc. v. Farm and Home Agency, Inc., Philip H. Meade, et al, now pending in Superior Court of Marion County, Indiana, No. S-60-5156, asks for equitable relief, for an accounting and for the appointment of a receiver.

To this complaint the relator demurred, questioning the jurisdiction of the respondent court over the persons of the defendant, the subject matter of the action and of the case. At the same time relator filed a motion in respondent court requesting the court to expunge from its records the order requiring defendant to produce certain books and papers. Both the demurrer and the motion were overruled by the court. From such adverse ruling stems this original action.

To the temporary writ issued by this court, the respondent filed a verified return averring that the respondent judge was and is the duly elected, qualified and acting judge of the Superior Court of Marion County, Indiana, Room 1, and at all times referred to herein was so acting; that respondent court is a court of record and of general jurisdiction, pursuant to §4-1401 to §4-1421, inclusive, Burns’ 1946 Replacement, and as such is possessed with full power and jurisdiction, both inherent and statutory, to hear and decide stockholders derivative suits and receivership matters. Respondent also raises the question of relators compliance with Rule 2-35 of the Indiana Supreme Court.

The issues raised in, this action present two questions for our consideration:

A. The jurisdiction of the trial court to hear and determine the action there pending;

B. Whether or not relator has complied with Rule 2-35 of this court.

On the question of jurisdiction, the relator urges that the lower court can not entertain the action there pending in view of the provisions of Acts 1935, ch. 162, §270a, p. 588, being §39-5023, Burns’ 1952 Replacement, reading as follows:

“Actions prohibited. — No order, judgment, or decree providing for an accounting or enjoining, restraining or interfering with the operation of the business of any insurance company, association, or society, to which any provision of this act is applicable, or for the appointment of a temporary or permanent receiver thereof, shall be made or granted otherwise than upon the application of the department, except in an action by a judgment creditor or in proceedings supplemental to execution.”

In passing upon the above question we must of necessity determine whether or not the defendant below, Farm and Home Agency, Inc., is an “insurance company, association, or society, to which any provision of this act is applicable,”. (§39-5023 Burns’ 1952 Replacement, supra.)

We refer to the definition section of Acts 1935, ch. 162, §3, p. 588, being §39-3203, Bums’ 1952 Replacement, for assistance in ascertaining the intent of the legislature on the question here involved.

Section (a) defines “Insurance” as follows:

“(a) ‘Insurance’ means a contract of insurance or an agreement by which one party, for a consideration, promises to pay money or its equivalent or to do an act valuable to the insured upon the destruction, loss or injury of something in which the other party has a pecuniary interest, or in consideration of a price paid, adequate to the risk, becomes security to the other against loss by certain specified risks; to grant indemnity or security against loss for a consideration.”

Section (d) defines “Company” as follows:

“(d) The term ‘company’ means an insurance company and includes all persons, partnerships, corporations, associations, orders or societies engaged in or proposing to engage in making any kind of insurance authorized by the laws of this state.”

Section (i) defines “agent” as follows:

“(i) The term ‘agent’ means any person, firm or corporation,, not being an officer or salaried home or department office employee of a company or a duly licensed insurance broker, who solicits business in behalf of any company, corporation or association or transmits for a person other than himself an application for a policy of insurance of any kind to or from such company, corporation or association; to act in the negotiation of any such policy or in the negotiation of its continuance or renewal; to write and countersign policies and collect premiums therefor.

“A general, district, branch office, state or special agent is a person, firm or corporation acting under authority of any insurance company to supervise and appoint agents, to inspect risks and otherwise transact business for and as representative of such company.”

In view of the unambiguous language of the statute and the legislative intent as evidenced by the definition sections of the Act as above cited we are required to find, and do here so find, that the defendant below, Farm and Home Agency, Inc., does not make insurance within the purview of the Act, but merely acts as agent, broker or representative for the solicitation of insurance business. Hence the lower court had and has jurisdiction to hear and determine the issues raised by the complaint below.

In view of the decision we have reached it is not necessary to and we do not pass on the question as to compliance with Rule 2-35.

The alternative writ heretofore issued is dissolved and a permanent writ is denied.

Bobbitt, C. J., Achor, Arterburn and Landis, JJ., concur.