Arensmeyer v. Metropolitan Life Insurance Company

• Decision Date: 03 January 1914
• Parties: WILLIAM E. ARENSMEYER, Appellant, v. METROPOLITAN LIFE INSURANCE COMPANY
• Court: Missouri Supreme Court

162 S.W. 261

254 Mo. 363

WILLIAM E. ARENSMEYER, Appellant, v. METROPOLITAN LIFE INSURANCE COMPANY

Supreme Court of Missouri, First Division

January 3, 1914

Appeal from St. Louis City Circuit Court. -- Hon. Hugo Muench Judge.

Affirmed.

Reynolds & Harlan for appellant.

(1) The reference in this cause was erroneous. (a) Reference is a matter of purely statutory right, and unless the case in which it is asked or in which it is granted is within the statute, the parties not consenting, the court has no power to grant it. Tool Co. v. Spring Co., 146 Mo.App. 31; Ice Co. v. Tamm, 138 Mo. 385. (b) As the statute (Sec. 1996, R. S. 1909) is an exception to the right of trial by jury, this court will not extend its meaning; a case should clearly appear to fall within the letter and principle of the statute before a party can be deprived of his jury trial. Ice Co. v. Tamm, 138 Mo. 385; Barger v Beach, 142 Mo.App. 389. (c) Whether or not a case may be referred over the objections of a party to the suit must be determined in each case by the pleadings and the issues raised by the parties themselves. Investment Co. v Bank, 96 Mo.App. 125. (d) In this case the issues are simple, it appearing from the pleadings that the question is not what commissions appellant is entitled to, but whether he is entitled to any commissions, the amount not being in dispute between the parties, or easily ascertained, and not requiring a complicated or tedious examination of a long account by the jury. Barger v. Beach, 142 Mo.App. 389; Snyder v. Crutcher, 137 Mo.App. 121. (2) (a) Appellant acquired a right to his renewal commissions the moment a policy was issued, and the termination of his employment by the respondent company did not affect this right. Assurance Soc. v. Brinker, 77 N.Y. 435; Hale v. Ins. Co., 120 N.Y. 294; Ins. Co. v. Nexsen, 84 Ind. 347; Scrimplin v. Life Association, 98 N.W. 613; Heyn v. Insurance Co., 192 N.Y. 1; Perry v. Casualty Co., 72 A. (N. H.) 369; Burleson v. N. W. M. I. Co., 86 Cal. 342. In all cases the construction to be placed upon the contract depends upon the language of the particular contract in question, and the construction placed upon the same by the parties in carrying out the terms thereof. Cases cited supra under this point. (b) The clauses contained in the various manuals delivered to appellant, his receipt dated January 16, 1893, at East St. Louis, nor the letter of January 5, 1900, so far as the same undertake to limit the appellant's right to renewal commissions were no part of his contract with the respondent, as the same existed at the time appellant ceased to be the respondent's agent in 1904, said provisions not being embodied in said contract as it existed in 1904, or referred to therein or called to the appellant's attention in such manner as to be binding upon him. McDonald v. Life Ass'n, 154 Mo. 618; Railroad v. Stewart, 79 Md. 487; Stocker v. Partridge, 25 N.Y.S. 193; Riley v. Brooklyn, 46 N.Y. 444; Railroad v. Mfg. Co., 16 Wall. 318; Railroad v. Doyle, 142 F. 669; Hutchison on Carriers, sec. 415; Page on Contracts, sec. 75; Robinson v. Benevolent Ass'n, 132 Mich. 695; The Majestic, 166 U.S. 373; Railroad v. Sayles, 87 F. 444; Blossom v. Dodd, 43 N.Y. 264; Madan v. Shepard, 73 N.Y. 329; Riordan v. Doty, 50 S.C. 537; Lawson v. Waite, 103 Wis. 244. A writing designed to supersede a former writing is not to be construed in connection with such former one in order to determine the intention of the parties. Overbeck v. Park & Club Ass'n, 17 Mo.App. 310; McClurg v. Whitney, 82 Mo.App. 625.

Nathan Frank and Richard A. Jones for respondent.

(1) The court properly ordered reference of the cause. There was involved therein not only an examination and determination of various items of a long account (Sec. 1996, R. S. 1909), but also a most intricate one. The difficulty, detail and intricacies of such undertaking is in a considerable measure apparent from the allegations of the petition of plaintiff and the evidence fully establishes it. (2) (a) Under the general regulations and rules of respondent applicable to its superintendents, as well as under his express agreement in such regard, appellant was not and is not entitled to receive any renewal commissions after the termination of his employment. King v. Raleigh, 100 Mo.App. 1; Burleson v. Ins. Co., 86 Cal. 342; Jacobson v. Ins. Co., 61 Minn. 330; Scott v. Ins. Co., 103 Md. 69; Stagg v. Ins. Co., 10 Wall. 589; Ins. Co. v. Hollaway, 51 Conn. 310. (b) The evidence of appellant altogether fails to support the burden of proof of establishing a change or modification in the respect suggested of the contract as originally made by virtue of which he was appointed superintendent of respondent; fails to present that definite mutual understanding and meeting of the minds of the contracting parties necessary to form a basis upon which to found an inference to such end. Clark on Contracts, p. 612; Sutter v. Raeder, 149 Mo. 297; Utley v. Donaldson, 94 U.S. 29; Harrison v. Railroad, 74 Mo. 364; Walsh v. Lurmey, 106 N.W. 447. (c) Not only appellant's express agreement in such regard but the usages and rules of the business in which employed and all the circumstances connected with the subject-matter involved, rebut the assumption of the existence of an understanding that he should be paid renewal commissions after his employment with respondent was terminated or that there was any understanding, or modification of the original agreement in such regard. Davis v. Hendricks, 50 Mo.App. 444; Car Co. v. Railroad, 121 F. 609; Rockefeller v. Merrill, 76 F. 909. (d) The letter of April 6, 1903, simply refers to one element of the matter at hand; that contained in the manual under the head "Commissions" and not to that under the head "Limitations on Commissions" and simply results in a modification to that extent and no more, without in any manner affecting the general agreement contained in respondent's contract and set forth in the manuals under the last named head. Clark on Contracts, 611; Savings & Loan Co. v. Wackenrender, 111 Cal. 471; Haynes, Spencer & Co. v. Baptist Church, 88 Mo. 285; Ice Co. v. Steam Eng. Co., 22 N.J.Eq. 72; Trust Co. v. Ellsworth, 129 Wis. 349. (3) The evidence in the cause fully supports the finding of the referee and the conclusions drawn therefrom, and the law governing such condition of fact was properly applied thereto.

BLAIR, C. Brown, C., concurs.

OPINION

BLAIR, C. --

Defendant is a life insurance company. Plaintiff entered its employ in 1888, and in 1893 became one of its district superintendents and served in that capacity in different districts until August 13, 1904, when his connection with the company was severed. He brings this action to recover renewal commissions on premiums on certain life insurance policies issued during his superintendency over the St. Louis, North, and the Joliet districts of which he had charge, successively, just prior to his leaving the company's service.

There was a judgment for defendant, and plaintiff appealed.

At the beginning of 1893, plaintiff, then an assistant superintendent in St. Louis, Missouri, was made a district superintendent and assigned to the East St. Louis district. His contract as district superintendent related solely to his duties and compensation in prosecuting the industrial branch of defendant's business, industrial insurance including only policies for less than $ 500 on which the premiums are paid in small, and usually, weekly installments. Plaintiff claims no right to recover anything under this contract or at all in connection with the industrial business done under his supervision.

Plaintiff testified that at the time he took charge of the East St. Louis district he signed the following:

"Ordinary Department. East St. Louis, Jan. 16, 1893. To the Metropolitan Life Insurance Company: I hereby acknowledge that I have received your circular letter of March 1, 1892, containing the manual for the use of the agents of the ordinary department of your company, by which I am appointed an agent of the ordinary department. I accept the appointment and agree to be bound in all respects both as to services and compensation and as to the conduct of my business as 'ordinary' agent by the terms of the said circular and manual; and I further agree to obey and abide by all the rules therein contained, and all of the amendments thereto and alterations thereof which hereafter may be made by you, including any and all changes and modifications thereof as to duties or as to compensation; and I agree faithfully to conform to all the rules and regulations of the company in its ordinary department as they are or may hereafter be made. I also agree that my employment and duties as agent of the ordinary department shall terminate whenever I shall cease to be a superintendent of the industrial department of the company, and that upon such termination all my interests in commissions and fees as ordinary agent shall cease, and that the amount of money that I have received from the company in the ordinary department at the date of the termination of my agency as aforesaid, shall be in full payment and satisfaction of all my services, commissions and fees as agent of the ordinary department. W. E. Arensmeyer, Agt."

Subsequently plaintiff was transferred to Joliet, thence to Buffalo, N. Y., and thence, on October 1, 1899, to the district designated "St. Louis, North," whence he was transferred, February 2, 1903, again to Joliet, and there his connection with the company ceased, August 13, 1904.

The renewal commissions now involved are those accruing after August 13, 1904, on premium payments on policies issued after October 1, 1899, in the St. Louis North, and Joliet districts, the petition alleging the...