Equitable Life Assur. Soc. v. Wells

• Decision Date: 07 February 1939
• Docket Number: No. 7528.,7528.
• Citation: 101 F.2d 608
• Parties: EQUITABLE LIFE ASSUR. SOC. OF THE UNITED STATES v. WELLS.
• Court: U.S. Court of Appeals — Sixth Circuit

101 F.2d 608 (1939)

EQUITABLE LIFE ASSUR. SOC. OF THE UNITED STATES v. WELLS.

No. 7528.

Circuit Court of Appeals, Sixth Circuit.

February 7, 1939.

Eugene B. Cochran, of Louisville, Ky. (Wm. Marshall Bullitt, Eugene B. Cochran, and Bruce & Bullitt, all of Louisville, Ky., on the brief), for appellant.

Wilbur Fields, of Louisville, Ky. (Woodward, Dawson & Hobson and Wilbur Fields, all of Louisville, Ky., on the brief), for appellee.

Before HICKS, SIMONS, and ALLEN, Circuit Judges.

HICKS, Circuit Judge.

Suit upon two policies of group life insurance issued by appellant to Kendall Refining Company, herein called Kendall. William Green held a certificate under one of these policies for $1,000 and a similar certificate under the other for $4,000. He died January 18, 1934. If, under the policies Green's employment with Kendall terminated before his death, appellee, Executor of the estate of Lula G. Green, the beneficiary, was not entitled to recover; otherwise he was. The issue was therefore one of fact and appellee prevailed.

Appellant complains of the denial of its motion for a directed verdict.

I. H. Shearer was Sales Manager and Treasurer of Kendall. In 1930 he employed Green under an oral agreement as a Supervisor. Orla F. Crutchfield was an Assistant Supervisor. The two had a certain territory and their duties were to assist the distributors therein in promoting the sales of Kendall products and to arrange for new distributors. Green was required to make weekly reports to the home office not later than Tuesday, covering his activities and expenses for the preceding week and including his itinerary for the current week. He had the habit of indulging in protracted drinking spells. There is evidence that such had occurred twice prior to July, 1933, and that Denman Thro, Shearer's assistant, who had authority to discharge Green, told him in July, 1933, that if it was repeated his services would be automatically terminated at the end of any week the company failed to get his report on time. Notwithstanding this warning Green continued to engage in drunken sprees lasting from a week to two weeks at a time but was not discharged.

In September, 1933, Shearer talked to Green and told him that he was not giving his territory the attention that it required; that the company had put up with these drunken periods as long as it would stand it and that if another occurred it was equivalent to his resignation. Green replied: "If I go on one again I realize I'm through, and I don't hold anything against you."

In October, 1933, he engaged in another spree which lasted for two weeks. He made no report whatever to the home office until he sobered up. But he was not discharged.

In December, 1933, the home office failed to receive Green's weekly report, due around Christmas. This was ominous and an effort was made to locate him. Crutchfield finally found him on January 7, 1934, at the Niagara Hotel in Peoria, Ill. He was ill and just coming out of a drunken condition. Crutchfield telephoned Shearer at the home office in Bradford, Penna., and in obedience to instructions from Shearer took Green to the Harrison Hotel in Chicago. On January 9, Green telephoned Shearer and, according to Shearer, he said: "I realize what has happened and I realize that you meant what you said and I just wanted to tell you that I have secured a position with the Tidewater Oil Company and I am going to represent them in this territory in a capacity similar to the one I have with your company."

Shearer testified that he responded, — "that I was sorry the thing had occurred but that it had happened so often there was absolutely no possibility of us again considering him especially at that time." Further, — "Mr. Green also asked if I would have some one, preferably Mr. Thro, come out so that he could turn over to him all of the correspondence that he had pertaining to the territory. * * *" On cross-examination Shearer testified that he did not tell Green that he was discharged "in those words" and that he never sent him a letter of discharge or accepted any resignation from him.

Green had not secured a position with the Tidewater Oil Company and Crutchfield testified that before this telephone conversation Green had delivered to him the files consisting of the correspondence which had accumulated between December 19, 1933, and January 10 following, and that he was attending to this correspondence at the request of Green who was ill.

Shearer sent Thro to Chicago where he saw Green in his room at the Harrison Hotel on January 11. He testified that at that time he took over from Green the files in his possession. These were the same files which, according to Crutchfield, had already been turned over to him by...