
    People v. Formosa.
    
      (Supreme Court, General Term, Fifth Department.
    
    October 23, 1891.)
    1. Life Insurance—Regulation—Rebate of Premiums.
    On a prosecution for violating Laws 1890, c. 401, making it a misdemeanor to allow any rebates of premium on a life insurance policy, there was evidence that defendant caused to be delivered to the assured a policy purporting to bp issued by a certain company, and the indictment charged that this company was a corporation, but its articles of incorporation were not proven, and no question was raised on the trial as to the existence of such a corporation. Held, that by issuing the policy he affirmed that the company existed, and was doing business in the state, and that he was its duly-authorized agent, and that, the question not having been raised at the trial, the proof would, on appeal, be held sufficient.
    3. Same—Constitutionality.
    Laws 1890, c. 401, prohibiting life insurance companies from making discriminations and allowing rebates, is not repugnant to the constitutional provision securing equality of rights to all, and protection against proscription and disparagement of their persons, property, and employment.
    8. Same—Good Character as a Defense.
    The court instructed that it was no excuse that a person had a good character, and yet that it would be foolish to say that such a question had no weight, because it was of importance as bearing on the question of whether a defendant would be likely to tell the truth; that it was important, not as to whether he committed the crime, but on the question whether it was likely the story he told was true, and convinced them that no crime had been committed. Held, that it was not misleading, as the jury could not have understood it to mean otherwise than that, if they were satisfied that defendant was guilty, his previous good character should not shield him.
    4. Same—Delivery of Policy to Jury—Instruction.
    It being proper that the jury should take the policy to see what was the contract therein expressed, and there being ample evidence to sustain a conviction, a remark of the court to the jury, in delivering to them the policy, that there were two phases of the law under which there might be a violation, when in reality the law presented but one, is not prejudicial.
    Appeal from court of sessions, Monroe county.
    William H. Formosa was convicted of a violation of Laws 1890, c. 401, in allowing a rebate of premium on a policy of life insurance, and appeals.
    Affirmed.
    Argued before Dwight, P. J., and Lewis and Macomber, JJ.
    
      W. H. Davis, for appellant. George A. Benton, Dist. A tty., for the People.
   Lewis, J.

The defendant was indicted October 30, 1890, for the crime of violating chapter 401 of the Laws of 1890, which reads as follows: “Section 1. Life insurance companies doing business in this state shall not make any discrimination in favor of individuals of the same class, and of the same expectation of life, either in the amount of premium charged, or any return of premium, dividends, or other advantages; and no agent of any such insurance company shall make any contract for insurance, or agreement as to such contract of insurance, other than that which is plainly expressed in the policy issued; nor shall any such company or agent pay or allow, or offer to pay or allow, as inducement to any person to insure, any rebates óf premium, or any special favor or advantage whatever in the dividends to accrue thereon, or any inducement whatever not specified in the policy.” Section 3 of the act makes the violation of it a misdemeanor. The defendant interposed a demurrer to the indictment on several grounds mentioned in the demurrer. .The indictment seems to follow the language of the statute, and sufficiently describes the crime charged; and, as the appellant does not in his belief urge this question, we assume that he is satisfied that the decision of the court was correct. The appellant makes two points upon which he relies for the reversal of the judgment:

First. That the judgment should be reversed because there is no evidence that the National Life Insurance Company of Montpelier, Vermont, is a corporation, as charged in the indictment. The indictment charged that the company was a corporation duly organized under the laws of the state of Vermont, and legally doing business in the state of New York, as a life insurance company. The articles of incorporation of the company were not proven, and no question seems to have been raised upon the trial as to the fact that such a corporation existed. There was proof that the defendant assumed to act as its agent. He caused to be delivered to the insured a policy purporting to be issued by the National Life Insurance Company of Montpelier, Vermont. The policy was indorsed: “William H. Formosa, General Agent, National Life Insurance Company of Montpelier, Vermont, 17 and 18 Osborne Block, Rochester, N. Y.” He testified that he had been acting as the agent of “our company,” and then went on to explain the transaction with the insured in respect to the policy in question. No other policy issued by any other company was proven. The people offered in evidence a policy of insurance which purported to be issued by the defendant-as agent of the company. Craves, the person insured, testified that the policy was delivered to him by the defendant. By issuing the policy, he affirmed that the company existed, and was doing business in the state of New York, and that he was its duly-authorized agent; and, not having raised the question upon the trial, we think it must be held to have been sufficiently proven.

The appellant contends that the law under which the defendant was convicted is unconstitutional, being repugnant to the clause of the constitution which secures equality of rights to all of the people of the state, and protection against proscription and disparagement of their persons, their property, and their employment, and impairs the obligation of contracts. The act attempts to regulate and control dealings between life insurance companies, their agents, and the persons insured by them. It provides that the company shall not make any discrimination in favor of individuals of the same class and of the same expectation of life, but shall charge the same premium for insuring the lives of such persons. The business of life insurance has become so general; such a large part of the public are interested in one way and another with the success and permanency of the companies, if carefully and properly managed; they are such an important factor in the affairs of the world,—that it may be said that the public generally are interested in their welfare. It has become a matter of common notoriety and knowledge that, in the sharp competition among the agents of the different companies, large inducements in the way of rebates of premiums, and special favors and advantages, are extended to persons to induce them to insure. The agents are compensated for their services in procuring the policies by a percentage of the premium paid by the insured. The companies, in their strife for business, pay large percentages of the premiums to their agents, to encourage them to vigilance and industry in procuring applications for policies, with the expectation and understanding that the agents will offer inducements in the way of rebates of premiums. There was evidence in this case showing that Formosa’s percentage upon the policy to Graves was 65 per cent, of the premium. The result of this strife for business was disastrous to the companies, resulting in serious losses to the beneficiaries named in the policies, and hence the legislature passed the act of 1890, with a view of regulating this important branch of the business of the country. The act should be held constitutional, unless it is seen to plainly violate some provision of the constitution. Similar acts have been passed by the legislatures of the different states, and have been held by the courts to be valid. The act of 1888, fixing the maximum charge for elevating grain, and making its violation a misdemeanor, was held by the court of appeals not to be violative of the constitutional guaranty protecting private property, and was held to be a legitimate exercise of the police power of the state over a business affecting the public generally. People v. Budd, 117 N. Y. 1, 22 N. E. Rep. 670, 682. In Railroad Co. v. Hanniford, 49 Ark. 291, 5 S. W. Rep. 294, the court held as valid the Arkansas act of 1885 prohibiting any railroad company in the state from charging a greater sum for the transportation of freight than is specified in the bill of lading, and imposing a penalty for a violation of the act. The court said: “This act being general and uniform in its operation upon all persons coming within the class to which it applies, it does not come within that special legislation prohibited by the constitution. For it applies to and embraces all persons” who or who may come into certain situations and circumstances, “ and is general and uniform, not because it operates upon every person in the state, for it does not, but because every person who is brought within the relations and circumstances provided for is affected by the law.” The interstate commerce act of 1887 regulates the transportation of freight by common carriers, and prohibits making special rates, rebates, drawback, or other device, and prohibits receiving from any person or persons a greater compensation for any service rendered or to be rendered in the transportation of persons or property subject to the provisions of the act than they charge, demand, collect, or receive from any other person or persons for doing a like and contemporary service in the transportation of property under substantially the same circumstances and conditions. This act has been held to be valid. If the legislature has the power to regulate the charges for elevating grain or transportation of passengers and freight, it is difficult to see any reason why the business of insurance companies may not be in like manner regulated. No injustice is done by this act to any insurance company, or agent thereof, who desires to do a legitimate and proper business. It does prohibit them from making unjust discriminations among individuals of the same class, and of the same expectation of life, insured by them. It seems to be a wholesome and proper act, and not in violation of any provision of the constitution.

The appellant claims that the charge of the court upon the question of good character was erroneous, and complains of the following statement of the court to the jury: “It is sufficient for your consideration of the case that it is the law of this state; and, if it is the law, it is to be enforced. If it has been violated, you are to bring in a verdict in accordance with the facts; and it is not your province nor your privilege to override the plain spirit and letter of the law, and say, because you think a man has a respectable character and respectable connections and standing in the community, that it shall shield him from the consequences of a crime, when perhaps the same considerations might not occur to you in behalf of a man not so respected or vouched for by his fellows. The law is no respecter of persons. It is no excuse to say that a man has a good character; and yet it would be foolish to say that such a question has no weight, because it is a question of importance to know, as bearing upon whether a defendant would be likely to tell the truth or untruth in the matter. It is important, not as to whether he committed the crime, but upon the question whether it is likely the story he tells is a true one, and convinces you that no crime has been committed. It is the same with the testimony of the gentlemen called to vouch for the defendant’s good character.” . No exception was taken to any part of the charge of the court, and we are not able to see that the jury could have been misled by the remark of the judge that the defendant’s character was not important upon the question as to whether he committed the crime. Taking the whole charge together, the jury must have understood the court to mean, if they were satisfied from the evidence that the defendant was guilty of the crime charged in the indictment, that his previous good character should not be allowed to shield him.

At the close of the charge the district attorney asked the court “to allow the jury to take the policy, in view of the phase of the law that the terms of the contract could not be changed.” The court remarked to the jury: “You will observe that there are two phases of the law under which there will be a violation: First, that no different contract shall be made by an agent or company from that expressed in the policy or contract; second, that no agent shall offer any inducement not set forth in the policy or contract. So you may take it [the policy] to determine what phase of the law has been violated.” This is complained of by the defendant. The court certainly was unfortunate in the selection of language in this part of the charge. Section 1 of the act in question first prohibits any discrimination by insurance companies in favor of individuals of the same class, and of the same expectation of life, either in the amount of premium charged, or in return of premiums, dividends, or other advantages, and prohibits any agent from making any contract different from that expressed in the policy, and further provides that no company nor its agent shall offer to pay or allow, as an inducement to insure, any rebates of premium, or any special favors, etc. The desire, evidently, of the district attorney, in making the request to the court to have the policy delivered to the jury, was to enable the jury to see what the terms of the contract were. It was proper that they should be permitted to examine it; and while there were not “two phases of the law under which there might be a violation, ” and the charge was not correct in that respect, the defendant made no request to the court to correct that part of its charge, neither did he take any exception. The evidence that the defendant was guilty of violating the statute being ample, we do not see how he was prejudiced by this portion of the charge.

There was sufficient evidence to sustain the verdict. All questions of fact were fairly submitted to the jury, and we find no error in the instructions of the trial court prejudicial to the appellant. The judgment of conviction appealed from should be affirmed, and the proceedings remitted to the court of sessions of Monroe county, with directions to proceed thereon. All concur.  