Cheek v. National Life Insurance Company of United States of America
| Decision Date | 07 January 1919 |
| Parties | ROBERT T. CHEEK, Respondent, v. NATIONAL LIFE INSURANCE COMPANY OF THE UNITED STATES OF AMERICA, Appellant |
| Court | Missouri Court of Appeals |
Argued and Submitted December 5, 1918.
Appeal from the Circuit Court of the City of St. Louis.--Hon. J Hugo Grimm, Judge.
REVERSED.
Judgment reversed.
Martin T. Farrow for appellant. J. B. Boyer of counsel.
(1) Defendant's request for peremptory instructions 1 and 2 should have been granted, because: 1. Plaintiff failed to prove the value of his services. Van Zandt v. St. Louis Wholesale Grocery Co., Mo.App. , 190 S.W. 1050; Bradner v. Rockdale Power Co., 115 Mo.App. 102, 91 S.W. 997; Woodward v. Donnell, 146 Mo.App. 119, 123 S.W. 1004; Dobbin v. Dobbin, Mo.App. , 204 S.W. 918; Bishop & C. Co. v. Kloss, 177 Mo.App. 412, 164 S.W 127; Porch v. Pollock, 174 Mo.App. 427, 160 S.W 815; Gardner v. Atlas Portland Cement Co., Mo.App. , 193 S.W. 31; Gillen v. Haley, 185 Mo.App. 23, 171 S.W. 638. 2. That part of Kirkwood's agency which it is claimed was delegated to plaintiff involved acts of judgment and discretion and therefore could not be delegated, and the defendant is not liable for services performed under the agency thus unauthorizedly delegated. Hodkinson v. McNeal Machinery Co., 161 Mo.App. 87, 142 S.W. 457; Rector v. H. K. Mulford Co. , Mo.App. , 185 S.W. 255; Winkleback v. National Exchange Bank, 155 Mo.App. 1, 136 S.W. 712; Chouteau Land & Lumber Co. v. Chrisman, 204 Mo. 371, 102 S.W. 973; Meux v. Haller, 179 Mo.App. 466, 162 S.W. 688. 3. Plaintiff failed to show an express promise to pay, which was necessary, owing to the fact that the relationship of principal and agent existed and that the claim is for extra services rendered in the line of the claimant's duties in such matters, if any, as were delegable. (a) If there is no relationship between the parties such as principal and agent or the parental relationship the law will imply a promise to pay for services which the recipient had no reason to suppose were gratuitous. Wagner v. Edison Electric Illuminating Co., 177 Mo. 44, 75 S.W. 966; McDonald v. Redemeyer, 197 Mo.App. 630, 198 S.W. 483; Hartley v. Hartley's Est., 173 Mo.App. 18, 155 S.W. 1099; Kingston v. Roberts, 175 Mo.App. 69, 157 S.W. 1042. (b) If such relationship exists between the parties there is a presumption that the services were not to be paid for, which presumption can only be overcome in so far as services rendered outside of the employee's usual duties are concerned, by evidence showing that under the circumstances the parties must have intended that the services were to be paid for. Wagner v. Edison Electric Illuminating Co., 177 Mo. 44, 75 S.W. 966; Hyde v. Honiter, 175 Mo.App. 583, 158 S.W. 83; Wagner v. Edison Electric Illuminating Co., 141 Mo.App. 51, 121 S.W. 329; Kingston v. Roberts, 175 Mo.App. 69, 157 S.W. 1042. (c) In so far as services rendered by an employee in the line of his usual employment is concerned, the presumption can be overcome only by an express agreement to pay. N. Y. Life Insurance Co. v. Goodrich, 74 Mo.App. 355; Leach v. Railway Company, 86 Mo. 27, 56 Am. Rep. 408; Bishop, Contracts, sec. 222, quoted and approved in Houghton v. Kittleman, 7 Kas. App. 207, 52 P. 898; 18 R. C. L. 534; 25 Cyc., 1036; Annotation 30, L. R. A. (N. S.) 653; Ross v. Hardin, 79 N.Y. 84; Schurr v. Savigny, 85 Mich. 144, 48 N.W. 547; Vorhees v. Combs, 33 N. J. L. 494; Jerome v. Wood, 39 Colo. 197, 88 P. 1067; Cooper v. Brooklyn Trust Co., 109 A.D. 211, 96 N.Y.S. 56. (2) Instruction A, given by the court, is erroneous, in that: (a) It authorizes a recovery by plaintiff if the circumstances attending Mr. Kirkwood's request to perform the services were such as to lead a reasonable person to believe and understand that the plaintiff intended to charge the defendant and expected to be paid for his work instead of making it conditional on all the circumstances surrounding the case and the relationship of the parties leading to that belief. Wagner v. Edison Electric Illuminating Co., 141 Mo.App. 51, 121 S.W. 329; Wagner v. Edison Electric Illuminating Co., 177 Mo. 44, 75 S.W. 966; Hyde v. Honiter, 175 Mo.App. 583, 158 S.W. 83. (b) In that it is based upon a wrong status existing between plaintiff and defendant and holds that a reasonable person could have been led to believe that the services were to be paid for; whereas, as a matter of fact, they were services of an agent which could not be delegated. (c) In that it does not advise the jury that there is a presumption that the services were paid for by his usual compensation, which presumption had to be overcome before they could find in favor of the plaintiff. Wagner v. Edison Electric & Illuminating Co., 141 Mo.App. 51, 121 S.W. 329. (3) Instruction B of the court is erroneous, in that: (a) The jury is told that the plaintiff's is not bound by any of the terms and provisions of Kirkwood's agency contract unless he had knowledge of its existence and contents at the time he rendered the services. (b) In that it is based on the wrong relationship between the parties and overlooks the fact that the work done could not be delegated. (4) The court erred in refusing to submit to the jury the question of an account stated, as asked to do in defendant's instructions 8 and 9. Alexander v. Scott, 150 Mo.App. 213, 129 S.W. 991; Piper v. St. Louis L. & G. P. Railway Company, Mo.App. , 200 S.W. 687; Yount v. Spain, Mo.App. , 180 S.W. 17; Kinman v. Cannefax, 34 Mo. 147; 1 C. J., 690; McCormick v. Inter-State Consolidated Rapid Transit Ry. Co., 154 Mo. 191. (5) The verdict is clearly the result of prejudice and passion and is excessive. Midland Operating Co. v. Miller, 164 N.W. 443. (6) The petition and statement do not state a cause of action. Rechnitzer v. Vogelsang, 117 Mo.App. 148, 151, 93 S.W. 326; Moffitt-West Drug Co. v. Crider, 124 Mo.App. 109, 110, 100 S.W. 1099.
Wm. A. Kane for respondent.
(1) Where one person performs services for another at his request, but without any agreement or understanding as to remuneration, the law implies a promise to pay the just and reasonable value thereof. Wood v. Lewis Estate, 167 S.W. 666; Hyde v. Hunter, 158 S.W. 83; McDonald v. Redemeyer, 198 S.W. 483; 40 Cyc. 2813. (2) Where extra services were rendered by an employee, at the request of his master, under reasonable expectation for payment, held under the evidence a question for the jury. Watcham v. Inside Inn Co., 139 S.W. 228; Bradner v. Rockdale Power Co., 115 Mo.App. 102. (3) (a) Where there is any substantial evidence from which an agent's authority may be fairly and reasonably inferred, the question is for the jury. Meux v. Haller, 197 Mo.App. 467; McCloud v. Cribb, 170 Mo.App. 624; Hackett v. Van Frank, 105 Mo.App. 384. (b) Where the principal puts an agent forward as a general agent, though in a particular line, or places him in a position where others are justified in the belief that his powers are general, the restrictions that may be imposed upon him privately will be immaterial except between himself and the principal. Where an agency has been shown to exist between the parties the facts will be liberally construed in favor of the approval by the principal of the act of the agent, and very slight circumstances will sometimes suffice to raise the presumption of ratification. Plummer v. McKnight, 156 Mo.App. 323. Where an agent is given authority to do certain acts, the law presumes that he is also vested with authority to do all acts which are necessary to the execution of the authority expressly given. St. Louis Gunning Adv. Co. v. Wannamaker & Brown, 115 Mo.App. 279. Where an agent is held out and represented by the principal to have general authority, any secret agreement or understanding between the principal and agent limiting the scope of the agent's authority will not affect the third party having no knowledge thereof. Mitchel v. Sanford, 149 Mo.App. 73. (4) Respondent, who worked for seventeen and one-half years, in the life and accident insurance business, and who made inspections and settled claims for insurance companies for a period of ten years, testified to the work done on each item sued on and placed a valuation of $ 3.50 as a reasonable value for his services performed on each inspection made. The record shows his qualification to testify as to the value of the services rendered.
Plaintiff commenced his action before a justice of the peace to recover $ 125 for services alleged to have been rendered by him in investigating, inspecting and settling claims against the National Life Insurance Company of the United States of America, the employment, as it is averred, coming through one O. P. Kirkwood, general agent for the company at St. Louis. From a judgment in favor of plaintiff before the justice, defendant appealed to the circuit court, where on a trial before the court and a jury a verdict was returned in favor of plaintiff for $ 125, judgment following, from which the defendant, the insurance company, has duly appealed.
By the testimony it appears that the plaintiff had entered into a written contract with the defendant insurance company to solicit insurance and collect premiums for that company and was to and did receive a commission for that work. But it is claimed that on various occasions, at the instance and request of Kirkwood, representing the defendant company, he had made investigations into a number of claims against the company by persons insured with it, for each of which investigations he charged $ 3.50. There was a sharp conflict between the plaintiff and Kirkwood over the question of employment by plaintiff for this work,...
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