Baker v. Missouri Nat. Life Ins. Co.
| Citation | 372 S.W.2d 147 |
| Decision Date | 30 September 1963 |
| Docket Number | No. 8198,8198 |
| Parties | James P. BAKER, Plaintiff-Appellant, v. MISSOURI NATIONAL LIFE INSURANCE COMPANY, Defendant-Respondent. |
| Court | Court of Appeal of Missouri (US) |
Farrington & Curtis, Springfield, Thomas Strong, Springfield, for plaintiff-appellant.
Milton B. Kirby, Springfield, Granoff, Levy & Craig, Kansas City, for defendant-respondent.
In this jury-waived, court-tried suit at law, plaintiff Baker of Springfield, Missouri seeks to recover from defendant, Missouri National Life Insurance Company (hereinafter called the Company), renewal commissions on premiums paid during the months of July 1960 to January 1961, inclusive, on policies of insurance issued by the Company through the efforts of plaintiff as soliciting agent. From the judgment for defendant, plaintiff appeals. A detailed statement of facts is required for an understanding of the issues.
By written contract dated April 25, 1956 (hereinafter referred to as the contract), the Company appointed plaintiff as general agent to solicit business in 'Springfield and Southern Missouri.' After preliminary recitals and the statement of plaintiff's appointment, the other contractual provisions were set forth in numbered paragraphs grouped under three headings. Twelve numbered paragraphs relating to the agent's responsibilities were placed in 'Part I' under 'The Agent Agrees.' (All emphasis herein is ours.) Of these twelve paragraphs, we are concerned only with paragraph 1, by which the agent agreed 'to produce a minimum of 5 applications each calendar month.' Three numbered paragraphs pertaining to the Company's obligations were placed in 'Part II' under 'The Company Agrees.' Of these three paragraphs, only paragraph 3 is here important: 'In accordance with the provisions of this contract, provided the General Agent has been continuously representing the Company for more than one year, renewal commissions, as herein specified, will be paid during his lifetime.' Other contractual provisions in seven numbered paragraphs were assembled in 'Part III' prefaced by 'It is further agreed and understood by the said Company and the said Agent.' Of these seven paragraphs, only paragraph 5 and a portion of paragraph 6 are relevant to the instant controversy:
notice in writing to the Agent, which action shall release the Company from all liability hereunder, and all commissions or other compensation accrued at the time (of) such termination, or thereafter to accrue, shall be forfeited to the Company as liquidated damages for such violation or action on the part of the Agent. This forfeiture is without prejudice to the Company's rights to secure legal redress as it may deem necessary.
Plaintiff acted under the contract until his agency was terminated during the latter part of August 1960. The parties agree that the contract was terminated but they are in violent disagreement (as will hereinafter appear) as to which party terminated and what accomplished or worked the termination.
Although in many months, particularly during 1958 and 1959, plaintiff's production barely reached the minimum of five applications, he produced not less than that number of applications each month during the period from May 1956 to January 1960. However, his production fell below five applications in February 1960 and thereafter declined further to three applications in March, two in April, one in May, one in June, none in July, and one in August. Upon trial, plaintiff offered two 'reasons' for his decreased production, namely, (1) he 'wasn't feeling very well' during 1960 and (2) he was 'unhappy' because the Company did not make available, as had been promised (so he said), another noncancellable policy in the field of accident, health and hospitalization insurance, for which the overwhelming majority of applications produced by plaintiff were submitted. Plaintiff also testified that on two occasions, to wit, in March 1958 and 'in the early Spring of 1960,' when he had complained that he did not want to make his 'quota' by writing insurance cancellable at the Company's option, Niman (the Company's vice-president) had told him (plaintiff) to write the form of non-cancellable policy then offered by the Company and had assured him that the Company would not cancel the contract 'on account of low production.' On the other hand, Niman denied having made any such statement and asserted that he frequently had discussed with plaintiff 'the matter of his quota production' and that plaintiff 'always promised * * * that he would do better and attempt to get his production up to quota and so forth and so on.' In any event, the Company continued to issue policies upon applications produced by plaintiff (few in number as they were), an exhibit prepared by the Company showing that as late as August 18, 1960, it had issued Policy No. 128722 to E. Hendricks upon an application solicited by plaintiff.
Throughout the life of the contract, the Company had sent to plaintiff about the fifteenth day of each calendar month a remittance for his renewal commissions on premiums paid during the preceding calendar month, and plaintiff admittedly received all renewal commissions due him on premiums paid during the period to and including the month of June 1960. However, he did not receive a remittance about the middle of August 1960 for renewal commissions on premiums paid during July; and, after waiting a few days, he made inquiry by memorandum dated August 20, 1960, and received at the Company's home office in Kansas City on August 22, which read as follows: Still having heard nothing from the Company concerning renewal commissions for July, plaintiff called Niman over long distance on August 24. Plaintiff's version of this conversation was that, when he asked 'what has happened to my renewals,' Niman said 'you are not going to get no more renewals' but that he (Niman) did not state that the contract was cancelled or that plaintiff no longer represented the Company. Niman's testimony concerning this conversation was: In response to a subsequent question as to whether he (Niman) had told plaintiff that the Company 'was terminating the contract,' Niman said, 'I did.'
Whatever the precise language of the conversation between plaintiff and Niman on August 24 may have been, plaintiff was (as he put it) 'quite shook up' for a few minutes; and, on the same day, he wrote and dispatched by registered mail the following letter (omitting date, salutation and signature) addressed to the Company and received at its home office in Kansas City the following day, to wit, on August 25:
'This is Official Notice that I am electing to exercise my option, as provided in Part 111, paragraph 6, in the cancellation of my General Agents Contract, dated April 25, 1956, and this is due notice to that effect.
'I am further demanding that amounts, delayed renewals due me and money accrueing from renewals be paid me promptly as per agreement.
Also on August 24, Hader (the Company's assistant treasurer) wrote and mailed to plaintiff the following unsigned memorandum or letter typed on an 'Interoffice Communication' form and captioned 'SUBJECT Commission Statement':
'This will acknowledge receipt of your memo of August 20, 1960 regarding your commission statement.
'Inasmuch as you have not fulfilled your part of the agreement, we have no alternative than to discontinue ours.
'Further, at any time you show us that you are able to fulfill your end of the agreement and to continue to fulfill your end of the agreement, we shall be only too glad to fulfill ours.'
On August 26, Niman wrote and mailed to plaintiff the following letter (omitting date, salutation and signature):
'This will acknowledge receipt of your letter...
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