Glass v. Leland Smith Ins. Agency, Inc., 3-779A203
| Decision Date | 22 January 1981 |
| Docket Number | No. 3-779A203,3-779A203 |
| Parties | Herbert W. GLASS, Appellant (Defendant Below), v. LELAND SMITH INSURANCE AGENCY, INC., Appellee (Plaintiff Below). |
| Court | Indiana Appellate Court |
Ralph R. Blume, Blume, Wyneken & Bullman, Fort Wayne, for appellant.
Stephen W. Adair, Adair, Perry, Beers, Mallers & Larmore, Fort Wayne, for appellee.
This is an appeal from the judgment of the trial court in favor of Leland Smith Insurance Agency, Inc. (Smith) for the sum of $3,024.93 and against Herbert Glass on his counter-claim against Smith. Glass raises the following four issues for review:
(1) whether Smith complied with the court's order to deliver its records to the commissioner and whether the records actually delivered are sufficient to render an accounting;
(2) whether the evidence is sufficient to sustain the judgment;
(3) whether the trial court erred in failing to give Glass an opportunity to present evidence regarding the issues raised in his counter-claim; and
(4) whether the trial court and the commissioner erred in failing to consider material evidence presented by Glass.
The facts of the case are not in dispute. On August 23, 1967 Smith filed a complaint against one of its brokers, Herbert Glass, alleging that Glass owed Smith $3,100. This was the amount Smith alleged it had remitted to various insurance companies for policies written by Glass and which Glass had not paid to Smith. Glass filed an answer denying all allegations and later filed a counter-claim against Smith. The counter-claim alleged that Smith had received gross insurance premiums and other monies on policies written by Glass, but had failed to pay Glass commissions. Glass alleged the amount owed by Smith to be approximately $15,000.
The trial court appointed Robert E. Christen, a Certified Public Accountant, to take and state an account of all commissions, premiums and other matters relating to the account existing between Smith and Glass. Both Smith and Glass were ordered to produce before the accountant all books, papers and writings relating to the account which were under their custody or control. By stipulation of the parties, and order of the court, the report of the commissioner was to be deemed conclusive unless clearly erroneous.
Most of Smith's records for the time period in question had been inadvertently lost or destroyed. The commissioner, however, was able to use the records produced by Glass and Smith to test the accuracy of Smith's ledger for the period between January 1, 1963 and September 1963. The commissioner issued a report based on the information available to him in which he determined that Glass owed Smith $3,024.93. The trial court then ordered Glass to produce all original cash receipts and commission reports in his possession. The commissioner issued a supplemental report in which he found that Glass owed Smith $3,668.22.
Glass filed his objections to the commissioner's report. The hearing on the objections was continued many times and was not completed until four and half years after the objections were filed. After completion of the hearing, the trial court overruled Glass' objections and entered its findings and conclusions along with a judgment in favor of Smith.
The first issue raised by Glass concerns Smith's compliance with the court's order to produce its records. The evidence is uncontradicted that many of the records were inadvertently lost or destroyed. Also uncontradicted is the evidence that Smith cooperated with the commissioner and produced all relevant records within its control. It is clear that Smith complied with the court's order.
Also, at issue here is whether the records produced were sufficient for the commissioner to render an accounting. In his initial report the commissioner listed the books and records made available to him. The commissioner used records furnished by Glass to test the accuracy of Smith's records. The commissioner, in this report, stated:
"Based on the records that were made available to us and the tests that we were able to make of the transactions of the Leland Smith Agency, as...
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