Opinion
Submitted October 28, 1938 —
Decided January 13, 1939.
1. The statute regulating the transaction of insurance business in this state ( Pamph. L. 1902, p. 407, as amended and supplemented) has no application to the doing of an insurance business by an individual.
2. A construction of a statute by the courts, supported by long acquiescence on the part of the legislature, or by continued use of the same language or failure to amend the statute, is evidence that such construction is in accordance with the legislative intent.
On appeal from a judgment of the Supreme Court entered after a trial without a jury, before Judge Oliphant, who filed the following opinion:
"The above entitled cause was tried before the court without a jury upon the pleadings and an agreed state of facts.
"These proceedings were instituted under and pursuant to section 89 of an act entitled `An act to provide for the regulation and incorporation of insurance companies and to regulate the transaction of insurance business in this state,' Pamph. L. 1902, p. 407, as amended and supplemented.
"The defendant is and has been since 1911 engaged in the glazing business in the city of Bayonne, Hudson county, as an individual, and since 1933 has entered into contracts with his customers in the said city of Bayonne, wherein and whereby for a certain money consideration he agreed for a fixed period of time to service the glass store front in the premises of said customers, which service consisted or (1) repairing store front glass by tightening bars or clamps to keep the glass in firm condition and (2) to replace all store front glass tightening bars or clamps to keep the glass in firm condition and (3) to replace all store front glass broken in the said premises. This business is limited solely to properties located in the city of Bayonne. Defendant's liability to replace broken glass is not limited to breakage resulting from his negligent installation thereof or his negligence in improperly servicing same. His business includes the servicing of glass not installed by him in the first instance and not manufactured or sold by him.
"Plaintiff contends that such contracts are those of insurance and that on December 17th, 1934, defendant entered into a contract of insurance with one Harry Saloway of Bayonne; that he was unlicensed and unauthorized to effect a contract of insurance in the State of New Jersey and that he did, therefore, violate section 88 of the act entitled `An act to provide for the regulation and incorporation of insurance companies and to regulate the transaction of insurance business in this state,' being chapter 134, laws of 1932 as amended; and that as a result thereof is liable to the penalty of $500 prescribed by section 89 of said act, to be recovered in the name of the State of New Jersey on the complaint of the Commissioner of Banking and Insurance. Judgment is demanded in the sum of $500.
"The answer denies the allegation of the complaint and among the separate defenses it is set up that section 88 of the aforesaid act does not prohibit an individual from carrying on the insurance business as principal.
"There are other separate defenses set out in the answer but they need not be considered here as the decision of the court on the one just above referred to will be dispositive of the entire case.
"A careful reading of `An act to provide for the regulation and incorporation of insurance companies and to regulate the transaction of insurance business in this state,' Pamph. L. 1902, p. 407, and the subsequent acts supplementing and amending same, down to and including the amendment of 1937, chapter 162, will disclose nothing in regard to the doing of an insurance business by an individual. The only reference to insurance business by individuals anywhere in the act is in section 88. Nowhere in the act is provision made for an individual to come under the regulations thereof. It has been held on a number of occasions by the courts of this state that the prohibition of the statute relating to the transaction of insurance business does not refer to the acts of individuals and notwithstanding these decisions, the legislature has persistently refrained from amending the act in this particular. `A construction of a statute by the courts supported by long acquiescence on the part of the legislature or by continued use of the same language or failure to amend the statute, is evidence that such construction is in accordance with the legislative intent. So the re-enactment of a statute after it has been construed by the courts, amounts to a legislative adoption of such construction.' 59 C.J. 1036, ¶ 613. This rule of statutory construction is viewed with approval in this state. Louden v. Louden, 114 N.J. Eq. 242 (at p. 250); Schweinler v. Martin, 117 Id. 67 (at p. 88).
"That the Insurance act does not prohibit individuals from transacting the business of insurance was first determined in this state in the case of Schenck v. State, 60 N.J.L. 381. That pronunciation was again made in Solomon v. New Jersey Indemnity Co., 94 Id. 318; affirmed, 95 Id. 545. The court said, `The Insurance act does not forbid individuals from transacting the business of insurance. Although the title of the act has been changed since the decision in Schenck v. State, we do not find that any change in the act itself prohibits individuals from making insurance contracts.'
"The exact question presented here was before the Court of Chancery in the case of Moresh v. O'Regan, 120 N.J. Eq. 534. Vice-Chancellor Egan in his opinion in that case said, `While the Insurance act of 1902 has been in some respects changed by amendments and supplements, the title of the act has not been changed. The amendments or supplements to the body of the act do not prohibit individuals from making contracts of insurance. The amendments and supplements appear to relate exclusively to the conduct of insurance business by corporations.' While it is true this case was reversed by the Court of Errors and Appeals in 122 Id. 388, the reversal was on jurisdictional grounds and not on the conclusions of the vice-chancellor. Mr. Justice Heher in his dissenting opinion in that case said (at p. 395): `I have no doubt that respondent was engaged in the indemnity and insurance business. But the provision of such indemnity by an individual is not within the prohibition of the statute relating to the transaction of insurance business. That question was definitely settled by this court in Solomon v. New Jersey Indemnity Co., supra. It is not now open to re-examination. The non-exercise of the amendatory power in the intervening period is indicative of legislative acquiescence in this judicial interpretation.'
"The court finds as the facts established in the case those recited in the stipulation made between the parties, the pertinent part of which has been heretofore referred to, and concludes as a matter of law and decision in the case that the plaintiff has no cause of action against the defendant. The judgment of the court is that of no cause of action in favor of the defendant and against the plaintiff."
For the State of New Jersey, appellant, David T. Wilentz, attorney-general ( Louis J. Cohen, assistant attorney-general, of counsel).
For the respondent, William Boorstein ( Julius Lichtenstein, of counsel).
The judgment under review herein should be affirmed, for the reasons expressed in the opinion delivered by Judge Oliphant.
For affirmance — THE CHANCELLOR, CHIEF JUSTICE, TRENCHARD, HEHER, PERSKIE, PORTER, HETFIELD, DEAR, WELLS, WOLFSKEIL, JJ. 10.
For reversal — PARKER, CASE, BODINE, DONGES, RAFFERTY, WALKER, JJ. 6.