Great S. Life Ins. Co. v. Long
| Decision Date | 30 October 1923 |
| Docket Number | Case Number: 12372 |
| Citation | 219 P. 926,1923 OK 871,93 Okla. 129 |
| Parties | GREAT SOUTHERN LIFE INS. CO. v. LONG et al. |
| Court | Oklahoma Supreme Court |
¶0 1. Trial -- Directing Verdict -- Effect of Motion.
The question presented to a trial court on a motion to direct a verdict is whether, admitting the truth of all the evidence which has been given in favor of the part against whom the action is contemplated, together with such inferences and conclusions as may be reasonably drawn from it, there is enough evidence to reasonably sustain a verdict, should the jury find in accordance therewith.
2. Same.
If the inference to be drawn from the evidence is a reasonable one, although not a necessary one, the court will not invade the province of the jury by taking from it the right to pass on the facts to be deduced from such inference.
3. Appeal and Error -- Questions of Fact--Verdict.
Where the evidence is in conflict, and there is evidence which reasonably tends to support the verdict, and the jury is properly instructed, and the verdict approved by the trial court, this court will not disturb the verdict.
4. Principal and Surety -- Exoneration of Sureties -- Notice of Principal's Default.
Where all agent, who has given a bond with sureties to secure the payment to his employer of premiums collected by him as such agent, appropriates the premiums collected by him as such agent to his own use and benefit, such agent is guilty of the offense of embezzlement, which involves moral turpitude, and where the employer, after knowledge of such embezzlements on the part of such agent, continues such agent in its employ and does not notify the sureties on said bond of such wrongful act, the sureties are exonerated from liability for all premiums collected by such agent after knowledge of such wrongdoing of the agent came to the employer.
Rummons & Hughes, for plaintiff in error.
Geo. L. Zink, for defendants in error.
¶1 This action was commenced in the district court of Kiowa county, Okla., on the 2nd day of September, 1916, by the Great Southern Life Insurance Company, a corporation, plaintiff in error, as plaintiff, against John J. Long, A. B. Johnson, and H. C. Lloyd, defendants in error, as defendants, for the sum of $ 406.52, with interest thereon at five per cent. per annum from September 26, 1913, and for the further sum of $ 40.65 as attorney fees, and costs, for an alleged liability of defendants in error as sureties upon the bond of an insurance agent in the employ of the plaintiff in error. For convenience we shall hereafter refer to the parties as plaintiff and defendants, as they appeared in the court below. Petition alleges that R. P. Warwick, on the 23rd day of April, 1912, entered into a written contract with plaintiff by the terms of which the said Warwick was appointed soliciting agent to procure applications for insurance on the lives of individuals for the plaintiff, Great Southern Life Insurance Company, and for collecting premiums due for the first year on policies of insurance written by said company to applicants, furnished by said agent and his subagents, and to transmit such premiums to plaintiff, but that if authorized in writing, the agent was permitted to retain his commissions, and unless such authorization was made by plaintiff to said agent he was to transmit to plaintiff and pay over all monies received by him and deliver to plaintiff all notes taken for premiums on life insurance and faithfully discharge his duties and obligations as agent, according to the terms and conditions of this appointment, and for the faithful discharge of the above conditions of the contract the sure ties obligated themselves, by the terms of the bond sued upon, to the plaintiff insurance company, that they should pay any shortages to the plaintiff due plaintiff from said agent. Said petition further alleges that under the contract and bond the said R. P. Warwick, as agent, commenced to perform services for it on the 23rd day of April, 1912, and continued in its employ as such agent until the 26th day of September, 1913, and that during said period the said Warwick collected premiums on insurance, belonging to plaintiff, and failed to remit same to plaintiff, as required by the terms of said agency contract, and by reason thereof became indebted to plaintiff in the sum of $ 406.52; that because of said failure to remit, the terms of the contract of agency and of said bond, given to secure the performance of same, were broken on part of the said Warwick, and the defendants, as sureties upon the bond, became liable to plaintiff, under the terms of said bond, in the said sum of $ 406.52, with interest thereon at the rate of five per cent. per annum from September 26, 1913. and for ten per cent. attorney fees, and the costs of this action. To the petition are attached copies of the contract, bond, and statement of the account, marked "Exhibits A," "X," and "Z."
¶2 To the above petition defendants answered, alleging, among other things, that they were exonerated from liability by reason of the fact that the agent, the principal of the bond, had wrongfully appropriated the monies and notes taken by him on the sale of insurance and paid to him as premiums thereon, and which wrongful appropriation of monies and notes was such that the agent was guilty of embezzlement, which embezzlements began immediately after the execution and delivery of the bond, and that such embezzlements were continuous, and that the initial embezzlement and continuous embezzlements thereafter were known to plaintiff at about the time such embezzlements occurred, and that plaintiff continued such agent in its employ and did not notify the sureties on the bond of such wrongful acts until long after the termination of the contracts of agency between plaintiff and Warwick, and that the pretended amount, for which liability is sought to be charged against the defendants, consists in the main of items of wrongful misappropriations, unlawful conversion, and embezzlements, upon the part of said agent, Warwick, of plaintiff's property and funds, known at the time by plaintiff and acquiesced in by plaintiff, and being unknown to defendants, and of which they had no notice or knowledge until after the termination of said contract between plaintiff and Warwick, and asked that they be discharged from any and all liabilities to plaintiff, under and by virtue of the bond sued on, and that plaintiff take nothing by reason of the action, and that they be discharged with their costs. Plaintiff filed a general denial to the above answer, by way of reply. The plaintiff introduced in evidence the contract, bond, and account of plaintiff, the account setting out in detail the business transacted by plaintiff between the 16th day of May, 1912, and the 26th, day of September, 1913, and rested. The defendants John J. Long and H. C. Lloyd testified that they never had any notice from the company of the shortages on part of R. P. Warwick during the time that Warwick was acting as agent for the company, and had no knowledge of said shortages until about the time this action was brought.
¶3 The witness C. A. Starns testified that he took out a policy with the company through its agent, R. P. Warwick, and was uncertain about the date, whether it was 1910 or 1912, and the account of plaintiff in evidence was presented to this witness, showing a premium of $ 39.40, and he testified that was the only policy he ever took out with the company and that he paid said premium by crediting Warwick on a grocery bill that the agent Warwick owed him of $ 38 or $ 39, for which the said Warwick issued him a receipt for the payment of the premium on the policy. The witness, R. C. Blackmer, testified that he took out a policy through the agent, R. P. Warwick, with the plaintiff company sometime during the year 1912, and paid the premium thereon by delivering a promissory note to R. P. Warwick, and that he purchased said note back from the said R. P. Warwick at a discount of 30 per cent. This was all of the evidence in the case, and the attorneys for both plaintiff and defendants practically agree that there is no conflict whatever in the evidence. The case was tried to a jury, and the jury returned a general verdict in favor of the defendants. Motion for new trial was filed by the plaintiff and overruled by the court; exceptions reserved and judgment was rendered upon said verdict against the plaintiff and in favor of the defendants on the 17th day of December, 1920, and the cause comes regularly on appeal by plaintiff to this court. The attorneys for plaintiff in error set out six assignments of error in their brief, but content themselves in their argument in presenting them under three heads: First, that no competent evidence whatever was offered to establish the defense set up in defendants' answer; second, error of the court in giving instruction No. 3 to the jury; and, third, error of the court in refusing to instruct the jury to return a verdict in favor of the plaintiff. The other assignments of error, not argued in the brief of plaintiff, will be regarded as waived and will not be considered by this court upon the authority of Bartlesville Zinc Co. v. James, 66 Okla. 24, 166 P. 1054. Upon examination of the record we find, under the eighth paragraph of the contract between the plaintiff and its agent, the following stipulation and agreement:
¶4 The contract,...
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