COLLINS v. CAMINETTI

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District Court of Appeal, Second District, Division 2, California.

COLLINS v. CAMINETTI.

Civ. 14205.

Decided: December 13, 1943

Sherman & Sherman and Chas. R. Thompson, all of Los Angeles, for appellant. Robert W. Kenny, Atty. Gen., and John L. Nourse, Deputy Atty. Gen., for respondent.

From an order denying petitioner's application for a writ of mandate directing the Insurance Commissioner of the State of California to annul his order suspending petitioner's license to act as a life insurance agent for the period of six months, petitioner appeals.

The evidence being viewed in the light most favorable to respondent, the essential facts are:

Petitioner had been engaged for approximately thirty years in the business of a life insurance agent and was licensed by the Insurance Commissioner of California to act as such agent. He was an agent for the Great States Life Insurance Company, which company had previously been placed in conservatorship, and was also an agent for the Pacific National Life Insurance Company. Petitioner was charged with having made misrepresentations relative to the condition of the Great States Life Insurance Company to various policyholders of that company for the purpose of inducing such policyholders to surrender or lapse their policies in the Great States Life Insurance Company and take out policies in other life insurance companies, and he was ordered to show cause why his license should not be revoked.

Petitioner urges reversal of the judgment on the ground that there is not any substantial evidence to sustain the charge that he made misrepresentations relative to the condition of the Great States Life Insurance Company for the purpose of inducing policyholders to surrender their policies in such company and take out policies in other insurance companies.

This proposition is untenable and is governed by this rule of law:

When a finding of fact is attacked on the ground that there is not any substantial evidence to sustain it, the power of an appellate court begins and ends with a determination as to whether there is any substantial evidence contradicted or uncontradicted which will support the finding of fact. (Estate of Winzeler, 42 Cal.App.2d 246, 248, 108 P.2d 720; 2 McK.Dig. (1930), page 701, Appeal and Error, sec. 1235.)

Applying the foregoing rule to the facts in the instant case, an examination of the record discloses substantial evidence together with inferences which the trial judge may have reasonably drawn therefrom to sustain the questioned findings and each and every finding upon which the judgment was necessarily predicated. For example, it is conceded that on August 15, 1940, the Insurance Commissioner was appointed conservator of the Great States Life Insurance Company and as a result of the Commissioner's operation of the company expenditures were reduced approximately 40 per cent and the company showed a profit of approximately $3,000 for the year of 1941 after paying about $10,000 in dividends to policyholders.

Mr. Larson testified that about July 20, 1941, petitioner told him that the Great States Life Insurance Company was “on the rocks” or “about done”; that the man who was the head of both the Great States Life Insurance Company and the Pacific National Life Insurance Company was switching his clients to the Pacific National Life Insurance Company “for their protection”; that as a result of such statement, he (Mr. Larson) surrendered his policy in the Great States Life Insurance Company and applied for a policy in the Pacific National Life Insurance Company.

Mr. A. G. Matlick testified that he held an accident and health insurance policy in the Great States Life Insurance Company, also that he held a life insurance policy in the same company on the life of his ward, Clifford A. Jones, aged 13 years; that on May 14, 1941, petitioner told him that the Great States Life Insurance Company “was not what it should be at all” and that he should take other policies on the boy; that he would get no more dividends on the policy and probably would get nothing at all out of the policy; that as a result of these representations he (Mr. Matlick) dropped the two insurance policies in the Great States Life Insurance Company, and took one out in the Pacific National Life Insurance Company on the life of his ward.

Clearly the foregoing facts and testimony constituted substantial evidence to sustain the findings which are attacked as unsupported by the evidence.

Since section 781 of the Insurance Code, St.1935, p. 518, forbids the making of misrepresentations to a policyholder for the purpose of inducing him to lapse, surrender or forfeit his policy, and section 783 of the Insurance Code authorizes the Commissioner to suspend for not more than three years the license of an agent who has knowingly violated the provisions of section 781 of the Insurance Code, the Commissioner was justified in suspending petitioner's license for six months. The trial court, in view of the above evidence, properly refused to issue a writ of mandate directing the Insurance Commissioner to annul his order.

For the foregoing reasons, the judgment is affirmed.

McCOMB, Justice.

MOORE, P. J., and W. J. WOOD, J., concur.