Wright v. State Mutual Life Insurance , 142 Ga. 764 ( 1914 )

Pendleton, J.

In an act of the legislature approved August 19, 1912, entitled “An Act to provide for the establishment of a Department of Insurance,” etc., (Acts 1912, p. 119), it is provided (section 29) that when any domestic life insurance company is insolvent, or when such company is in any one of certain other named conditions or situations, 'or has done or failed to do certain things enumerated in the act, the insurance commissioner of the State may, the attorney-general representing him, apply to the superior court or any judge thereof for an order directing such company to show cause why the commissioner should not take possession of its property and conduct its business, and for such relief as the nature of the case, or the interest of its policyholders, creditors, stockholders, or the public may require. It is further provided in the act that where the court grants the application the commissioner may, in accordance with the provisions of the act, administer and conduct the business of the insurance company; and the act also contains the provision that the commissioner may deal with the property and business of such company in his own name as commissioner or in the name of the company, as the court may direct; and he is vested with title to all contracts and rights of action of such company, and, when certain conditions provided for in the act exist, he may proceed to liquidation. While authority is thus conferred upon the commissioner for taking charge of the business referred to and administering the same, or for liquidating in certain cases, in the absence of express provision in the statute itself or necessary implication, divesting creditors and policyholders of rights and remedies heretofore existing under the law, the act should not be construed to be exclusive so as to deprive policyholders or creditors of their right to make application to the court for such relief as a court of law or equity might have afforded them under the laws existing at the time of the passage of the statute in question. That being the ease, and the judge of the court below having, upon application for injunction and receiver, appointed-a temporary receiver to take charge of the property and assets of the insurance company, it was not error for him to refuse to take the property and assets thus turned over to the receiver so appointed, and turn the same over to the insurance commissioner for the purpose of having him administer it under the provisions of the act of 1912.

Judgment affirmed.

Fish, O. J., absent. Beeh and Bill, JJ., concur. Atkinson and Freeman, JJ., dissent.

Atkinson and Freeman, JJ.

Whether the remedy provided in section 29 of the act referred to in the notes by the majority should be held to be exclusive depends upon a construction thereof when considered in connection with the entire act. The legislative intent must be given effect so far as it may legitimately appear from the act. Considering the language used and the nature of the subject-matter of legislation, it is our opinion that the remedy was designed to be exclusive. Ulmer v. Falmouth Loan & Building Association, 93 Me. 302 (45 Atl. 32); Dresser v. Hartford Insurance Co., 80 Conn. 681 (70 Atl. 40 (16)); Great Western Life Assurance Co. v. State ex rel. Honan (Ind.), 102 N. E. 849.

November 20, 1914.

Application by insurance commissioner. Before Judge Fite. Floyd superior court. June 30, 1914.

Warren Grice, attorney-general, for plaintiff. Maddox & Doyal and Spencer B. Atkinson, for defendant.