Boock v. Napier

• Decision Date: 09 June 1954
• Docket Number: Gen. No. 46318
• Citation: 120 N.E.2d 244,3 Ill.App.2d 19
• Parties: BOOCK v. NAPIER et al.
• Court: United States Appellate Court of Illinois

Page 244

120 N.E.2d 244

3 Ill.App.2d 19

BOOCK v. NAPIER et al.

Gen. No. 46318.

Appellate Court of Illinois, First District, First Division.

June 9, 1954.

Rehearing Denied June 29, 1954.

Brundage & Short, Chicago (Charles F. Short, Jr., P. Sveinbjorn Johnson, Chicago, of counsel), for appellants.

Michael A. Gerrard, Chicago, for appellee.

NIEMEYER, Presiding Justice.

Defendants appeal from a decree directing an accounting as to commissions, if any, due plaintiff as sales manager of insurance agencies under a contract dated February 12, 1946 between the plaintiff and defendant L. O. Napier, doing business as The United Reserve Insurance Agency, and a contract dated May 1, 1947 between plaintiff and defendants doing business as the L and M Agency.

By the first contract plaintiff was employed to manage and promote the sale of life, health and accident, hospital and other insurance in certain territories where the United Reserve Insurance Agency may be doing business. As such sales manager plaintiff was to find, train and supervise agents and solicitors for his employer (hereinafter referred to as Napier), and to do everything in his power under the direction of Napier to promote the sale of such insurance in the territory defined in the various agreements between Napier and the several companies for which he was writing insurance, namely the United Insurance Company of Chicago, Reserve Life Insurance Company of Dallas, Texas, Colonial Life and Accident Company of Chicago, and National Travelers Casualty Company of Des Moines, Iowa. Plaintiff's compensation was fixed at $150 per week as salary, and a sum equal to 2 per cent of the net cash premiums received by the insurance companies hereinabove named, whether said payments were paid directly to the company or paid to the agency. This compensation was to be paid to plaintiff in the month succeeding the payment of such premiums to the respective companies. The term 'net cash premiums' is defined as 'the cash premiums actually collected on business written by said United Reserve Insurance Agency, exclusive of amounts retained by solicitors or agents in the employ of said agency, and includes all such premiums which are paid in respect of policies written by said agency during the term of Boock's employment.' The contract could be terminated by either party upon serving written notice upon the other party 60 days in advance of the date of termination. On termination of the contract the commissions payable to Boock thereunder shall continue to be paid 'in respect of all business placed on the books by United Reserve Insurance Agency during the employment of Boock so long as premiums are paid on said business and so long as Boock does not employ, use or tamper with any of the personnel, including agents, managers and solicitors of said United Reserve Insurance Agency, unless with the written consent of Napier.'

The second contract, dated May 1, 1947, was between plaintiff and the defendants L. O. Napier and M. A. Napier, co-partners, doing business as L and M Agency. Defendants are husband and wife. The partnership represented the American Life Insurance Company of Chicago. Plaintiff's duties as sales manager were identical with those fixed in the contract with Napier. He drew no salary, his compensation was limited to a sum equal to 2 per cent of the net cash premiums received by the insurance company directly or through the agency. The agreement could be terminated by either party upon giving 60 days' notice to the other party, and plaintiff's right to future payments of commissions was identical with his rights under the first contract.

Plaintiff began the performance of his duties under the contracts on their respective dates and continued until he terminated his employment under each contract as of November 1, 1949, by notice dated August 30, 1949. Under the contract with Napier he opened a number of offices in various states, appointed managers of the offices and employed or directed the employment of many solicitors or salesmen. About 200,000 policies were sold. Services performed under the L and M Agency contract were of a like nature, but the business procured was considerably less. Plaintiff's salary was paid regularly and he was reimbursed for his expenses. At various times he received payments on account of commissions due him, but the provisions of the contract as to monthly payments of such commissions and the furnishing of copies of monthly statements received from the insurance companies were not complied with. In May of 1950 defendants, acting on advice of counsel, advised plaintiff that no further payments of commissions would be made. Suit was then brought. The cause was heard before a master, whose report was approved by the court and the decree for an accounting, hereinbefore mentioned, was entered.

The testimony of plaintiff as to work done in promoting sales of insurance is undisputed. There is no evidence of complaint or cause for complaint in this respect. On the contrary, plaintiff testified without contradiction that Napier tried to induce him to change his mind about termination of his employment and to continue working under the contracts. The only charge of breach of contract barring plaintiff's right to further commissions is defendants' claim that plaintiff was disloyal in that he systematically maligned his employer by telling various office managers employed by defendants that Napier, the active head of the agencies, was incompetent, crazy, insane and did not know what he was doing; that all Napier had was money, and he, plaintiff, was the brains of the organization; that defendants could not run the business without plaintiff; that the organization would collapse if he left it and that the managers were to pay no attention to instructions received from defendants. In support of this contention defendants introduced the testimony of seven former office managers, three other employees and the wife of an employee as to conversations at various times, to and including a Christmas party in 1948, in which the respective witnesses claim that plaintiff made one or more statements like those hereinabove enumerated derogatory to Napier. A contract printer whom plaintiff had known for years testified that in September or October 1949 plaintiff told the witness that he, the plaintiff, was leaving and that it would be wise for the witness to collect the money Napier owed him as he, plaintiff, was not sure that the organization would fare so well after he left. The master rejected the testimony of the manager of the building in which defendants' offices were located and a barber in the building concerning an alleged statement of plaintiff that Napier was incapable of managing the insurance business of which plaintiff was carrying the burden, and that Napier was mentally sick and should be placed in an institution. No ruling of the trial court on this action of the master was sought in the manner and at the time fixed by the rules of the superior court. The defendants' objection is waived. Plaintiff unequivocally denied making any of the statements testified to by these witnesses. Neither defendant testified and there is no testimony in the record as to when de...