Kirchen v. Gottschalk
| Decision Date | 05 January 1965 |
| Citation | 131 N.W.2d 885,26 Wis.2d 123 |
| Parties | Kenneth J. KIRCHEN, Appellant, v. Donald GOTTSCHALK et al., Respondents. SECURITY GENERAL AGENCY CORP., a Wisconsin corporation, Respondent, v. Kenneth J. KIRCHEN, Appellant. |
| Court | Wisconsin Supreme Court |
Maroney & Schiro, Milwaukee, for appellant.
Grootemaat, Cook & Franke, Milwaukee, Harry F. Franke, Jr., John J. Ottusch, Milwaukee, of counsel, for respondents.
On appeal from a decision of a trial court sitting without a jury, the court's findings of fact will be sustained unless they are contrary to the great weight and clear preponderance of the evidence. Estate of Dobrecevich (1961), 14 Wis.2d 82, 85, 109 N.W.2d 477; Clark v. Moru (1963), 19 Wis.2d 503, 504, 120 N.W.2d 888. Nor is it sufficient for a reversal that contrary findings could have been made with evidence in their support. Weber v. Kole (1959), 7 Wis.2d 107, 95 N.W.2d 784.
The company's claim for unremitted premiums is but feebly contested by Kirchen. The debt of Kirchen to the company is set forth in the books of the company, and there is no claim by Kirchen that the figures set forth therein are inaccurate. The findings of fact and the judgment are clearly in accord with the undisputed evidence.
We find that none of the trial court's findings are contrary to the great weight or clear preponderance of the evidence, and therefore the judgments based upon these findings must be sustained.
Kirchen contended in his first cause of action that the company owed him commissions for the period of 1953 to 1960. He offered only his estimate of the amounts due him. The company, on the other hand, produced its records indicating an indebtedness of Kirchen to it. The court found that Kirchen was indebted to the company, a finding clearly in accord with the evidence, and certainly not contrary to the great weight or clear preponderance of it. To the extent that there is any conflict in the evidence, that conflict must be resolved to support the findings of the trial court.
The second cause of action alleged by Kirchen must be disposed of in a similar manner. He claimed that the company had failed to pay him commissions earned on student accident insurance during the period 1953-1957. He alleged that he was in doubt and asked for an accounting. However, the records of the company showing credits to Kirchen are substantially in accordance with his claim. There was evidence that the commissions for student accident insurance were merged with other commissions due Kirchen and the whole amount was probably paid to him. Kirchen himself testified that his draw reflected the commissions credited to him on student accident sales
It should also be borne in mind that though Kirchen was entitled to credit for commissions, it does not necessarily follow that payment was required in such...
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