Franklin v. Globe Mut. Life Ins. Co.

• Decision Date: 31 March 1873
• Citation: 52 Mo. 461
• Parties: EDWARD C. FRANKLIN, Respondent, v. THE GLOBE MUTUAL LIFE INS. CO., Appellant.
• Court: Missouri Supreme Court

52 Mo. 461

EDWARD C. FRANKLIN, Respondent,

v.THE GLOBE MUTUAL LIFE INS. CO., Appellant.

Supreme Court of Missouri.

March Term, 1873.

Appeal from St. Louis Circuit Court.

Noble & Hunter, and W. T. Sharman, for Appellant.

The evidence showed no authority on the part of the corporation under its charter to make such a contract.

Stewart & Wieting, for Respondent.

The authority of an agent to act for a corporation need not be proved by record or writing, but may be presumed from his acts and the general course of business. (Warner vs. Ocean Ins. Co., 4 Shep. [Maine,] 439.)

VORIES, Judge, delivered the opinion of the court.

This action was brought to recover damages for an alleged breach of contract on the part of defendant, which had before been entered into between the plaintiff and defendant.

It is charged in the petition that plaintiff is a physician and surgeon, and as such was employed by defendant as its medical examiner at St. Louis, except at such times as plaintiff might be absent from the city or unable to attend to such services; that plaintiff was at all times to hold himself in readiness to perform such services, except when absent, &c. that in consideration for his services, defendant agreed to pay plaintiff the usual price allowed for such examinations, to be paid as follows: Defendant agreed to keep plaintiff's life constantly insured in such amount that the premiums would be equal to the total amount due plaintiff for his services, and the premiums should be taken up and canceled to the extent of the value of plaintiff's services, as they severally became due.

That about the 29th day of September, 1868, plaintiff in conformity to said agreement, entered upon the service of defendant as such examiner, and from said time until about the month of July, 1869, continued to faithfully perform said duties; that about the 29th day of September, 1868, in pursuance of said agreement, defendant issued a policy of insurance upon the life of plaintiff for five thousand dollars, payable at the death of plaintiff; the premiums of $50.70 per quarter-yearly were paid by plaintiff by his services as examiner; that afterwards his services amounting to more than the premiums on said policy, defendant issued to plaintiff other policies to the amount of $5,000, the premiums of which were paid by his services as aforesaid; that the defendant in violation of its said contract, in the month of July, 1869, employed other physicians to make medical examinations as aforesaid, and refused to receive the services of plaintiff, or to pay him therefor, or otherwise perform said contract, and refused to keep the life of plaintiff insured, and to receive his services as aforesaid in payment thereof, as it had agreed to do by said contract; that at the time of said breach of said contract by defendant, its said business was increasing, so that if defendant had complied with its contract, the fees which would become due plaintiff, would have been sufficient to pay the premiums on a policy on plaintiff's life for ten thousand dollars; that by means of the breach of said contract plaintiff has been damaged in the sum of ten thousand dollars, for which judgment is claimed.

The defendant in its answer denied the making of any such contract with plaintiff, as is alleged by him in his petition, or that any services were ever rendered by plaintiff for defendant under or by virtue of any such contract. The answer states, that plaintiff applied to defendant's agent in St. Louis, about the 24th day of September, 1868, under the rules of said Company, for a policy of insurance on his life in the sum of $5,000, that upon the payment of the sum of $50.70 and the agreement to pay said sum by plaintiff, quarter-yearly thereafter, said Company issued to the plaintiff its policy for the said sum of $5,000; that the policy was issued on the condition that plaintiff would pay the said quarterly payments, and otherwise comply with the conditions of the policy; that said policy is still in full force, plaintiff having paid the last quarterly payment in cash; that since said policy was issued, the plaintiff, being a physician, was called on by the agent of the defendant to make examinations of persons applying for insurance in said Company, and that for his services he was allowed three dollars for each examination, and that plaintiff without any contract or arrangement with defendant or its gent, as a matter of convenience to himself, allowed his fees for services to be retained by the agent of the defendant, to be used by plaintiff in the payment of his quarterly payments, as aforesaid; that plaintiff made a second application for a second policy of insurance on his life, to the agent of defendant at St. Louis; that the policy was issued and placed in the hands of said agent, but never delivered to plaintiff, he not having paid the premium on the same.

A replication was filed by the plaintiff...