Lanowah Inv. Co. v. John Hancock Mut. Life Ins. Co.

• Decision Date: 25 May 1942
• Citation: 162 S.W.2d 307,236 Mo.App. 1062
• Parties: LANOWAH INVESTMENT COMPANY, A CORPORATION, RESPONDENT, v. JOHN HANCOCK MUTUAL LIFE INSURANCE COMPANY, A CORPORATION, APPELLANT
• Court: Kansas Court of Appeals

162 S.W.2d 307

236 Mo.App. 1062

LANOWAH INVESTMENT COMPANY, A CORPORATION, RESPONDENT, v. JOHN HANCOCK MUTUAL LIFE INSURANCE COMPANY, A CORPORATION, APPELLANT

Court of Appeals of Missouri, Kansas City

May 25, 1942

Appeal from Buchanan Circuit Court.--Hon. Sam Wilcox, Judge.

REVERSED AND REMANDED.

Judgment reversed and cause remanded.

William C. Michaels and Ralph M. Jones for appellant.

Harold J. Taylor, Landis & Landis and Michaels, Blackmar, Newkirk Eager & Swanson of counsel.

(1) The petition does not state, facts sufficient to constitute a cause of action. The demurrers to the petition and to the evidence were improperly overruled. (2) The theory of recovery submitted in the plaintiff's instruction is outside the issues of the pleadings and the evidence. (3) Schuster was without power or authority to obligate the defendant to the payment of commissions. Gaines v Berkshire Life Ins. Co., 228 Mo.App. 319, 68 S.W.2d 905 907; Bennett v. Royal Union Mutual Ins. Co., 112 S.W.2d 134, 145; Gibson v. Texas Prudential Ins. Co., 229 Mo.App. 867, 86 S.W.2d 400, 406. (4) Where was a complete failure of proof that the policy written by the Florida agent was the result of information received from Kansas City. (5) There was a complete failure of proof that the part of the premium from which the soliciting agent or broker is entitled to his commission had been paid. (6) The verdict is not responsive to the issues raised by the pleadings and by the evidence, and the trial court erred in receiving it over defendant's objection. Johnson v. Labarge, 46 Mo.App. 433; Cole v. Armour, 154 Mo. 333, 55 S.W. 476; Shoemaker v. Johnson et al., 200 Mo.App. 209, 204 S.W. 962; Weisels-Gerhardt Real Estate Co. v. Pemberton Inv. Co., 150 Mo.App. 626, 131 S.W. 353; Witty v. Saling, 171 Mo.App. 574, 154 S.W. 421; Watson v. Esther, 207 Mo.App. 508, 226 S.W. 324; Abbey v. Attheimer, 215 Mo.App. 1, 263 S.W. 471; Morey v. Feltz, 187 Mo.App. 650, 173 S.W. 82; Lindstrom v. K. C. So. Railroad, 202 Mo.App. 399, 218 S.W. 936; Busse v. White, 302 Mo. 672, 274 S.W. 1046.

Utz & Utz for respondent.

(1) The petition states ample facts to show a cause of action against defendant. McMonigal v. North Kansas City Development Co., 223 Mo.App. 1040, 129 S.W.2d 75; 12 C. J. Sec., pages 180-181, sec. 83. (2) Plaintiff's instructions follows both the petition and evidence. (3) Defendant's general agent had authority to obligate defendant to pay plaintiff's commission. 2 C. J. S., p. 1036, sec. 3 C; 3 C. J. S., p. 144, sec. 223; Kissell v. Railroad, 194 Mo.App. 346, 354; Gaines v. Berkshire Life Ins. Co., 228 Mo.App. 319, 68 S.W.2d 905, 907 (3) (6-7); Kelso v. Lincoln Life Ins. Co., 227 Mo.App. 184, 51 S.W.2d 203, 208 (3) (4-6). The cases of Bennett v. Royal Union Mutual Life Ins. Co., 112 S.W.2d 134-145, and Gibson v. Texas Prudential Ins. Co., 229 Mo.App. 867, 86 S.W.2d 400 to 406, are inapplicable to facts in case at bar. (4) The photostatic copy of the application, doctor's examination and certificate attached to the policy procured by plaintiff showed upon the face of the policy that it was information furnished defendant by plaintiff upon which defendant issued policy to said J. O. Price. (5) The policy issued and delivered to J. O. Price upon its face showed the amount of premium paid. (6) Under the pleadings and evidence the verdict is sufficient. Huff v. Thurman, 74 Mo.App. 635; Peppas v. H. Ehrlich & Son Mfg. Co., 228 Mo.App. 556, 71 S.W.2d 821, 824 (3) (4); Blodgett v. Koenig, 314 Mo. 262, 284 S.W. 508; Wilson v. County of Buchanan, 318 Mo. 64; Weinstein v. Laughlin, 21 F.2d 740.

OPINION ON REHEARING.

BLAND, J.--

The following portions of the opinion of CAVE, J., delivered on the original submission of the case are adopted by the court on rehearing:

"This is a suit by plaintiff to collect a commission for a premium paid on an insurance policy issued by the defendant to one J. O. Price. The case was tried to a jury, resulting in a verdict for the plaintiff in the sum of $ 300, and after the overruling of defendant's motion for a new trial and in arrest of judgment, the cause was duly appealed to this court. For convenience the parties will be referred to as plaintiff and defendant.

"The plaintiff first filed a petition making the John Hancock Mutual Life Insurance Company, a corporation, the sole defendant, and thereafter filed an amended petition joining one Carlos F. Schuster, who was general agent in Western Missouri for the insurance company, as a defendant. Thereafter, the plaintiff dismissed as to Carlos F. Schuster, and the case was tried against the John Hancock Mutual Life Insurance Company as the sole defendant.

"The defendant filed a demurrer to plaintiff's amended petition on the ground that said amended petition does not alleges facts sufficient to constitute a cause of action. The demurrer was overruled and the defendant filed answer consisting of a general denial and specifically denying that the plaintiff is a corporation authorized under the laws of Missouri to transact any business of writing insurance or acting as an insurance broker.

"It is now urged that the court committed error in overruling the demurrer. In substance the petition alleges the following: The incorporation of plaintiff as a Missouri corporation; the incorporation of the defendant and its license to engage in general business of writing life insurance in the State of Missouri; that one Carlos F. Schuster is the general agent of the defendant in this part of Missouri; that the plaintiff through its agent, H. R. McMurtrie, solicited one J. O. Price for a policy of life insurance to be placed with the defendant, and that during the months of August and September, 1938, the said McMurtrie called and discussed the type and kind of insurance which would be desirable for the said J. O. Price; that Price desired to take a ten-year income type of policy, but was not able to do so at that time; that Price did sign an application for a five-year term policy in the sum of $ 20,000 and had a physical examination by a physician for the defendant; that thereafter Price left Missouri for the State of Florida and in due time the five-year term policy was issued by the defendant and delivered by mail by plaintiff to Price in Florida; that upon failure of Price to pay the premium the defendant insisted that the premium be paid or the policy returned; that on discussing the matter with the defendant through its agent, Carlos F. Schuster, the said Schuster suggested that they forward the information concerning the negotiations leading up to the issuing of the five-year policy and that it was in the mind of Price to concert the term policy into an income type of policy, to the general agent of the defendant at Jacksonville, Florida; that Schuster further suggested that it was a recognized custom of insurance business, observed by the defendant, that in cases where such information was forwarded from one agent to another, for the receiving agent to handle the matter as a courtesy, and that there would be no requirement for the plaintiff to split the commission with the Florida agent; that the plaintiff, resting upon the assurance made by the defendant, permitted the information to be forwarded by the defendant to its agent at Jacksonville, Florida; that pursuant to this act, an agent of the defendant in Florida wrote a policy which was in the principal sum of $ 20,000, the endowment type of insurance to mature in ten years; that the policy was issued on the physical examination made upon the application written by the plaintiff, and that Price was never contacted by any agent of the defendant in Florida, except the agent to whom the information had been forwarded; that the yearly premium on the policy issued to Price was $ 2400, and that it had been paid to the defendant; that the first-year commission due to the plaintiff under the oral agreement under which it works with the defendant as a broker is 20 per cent of the first year premium and 3 per cent of all renewal premiums; that the commission now due is $ 480, and that demand has been made and payment refused.

"In support of its contention that the demurrer to the petition should have been sustained, the defendant argues that the petition shows on its face that the policy on which the recovery of commission was asked is not the policy for which plaintiff secured an application, and that the policy actually written was written by an agent of the defendant in the State of Florida."

However, the demurrer was waived when defendant pleaded over but regardless of this "we do not think there is any merit in this contention because the petition in substance alleges that the policy written in Florida was based on the application and physical examination secured by the plaintiff."

It is also alleged that the petition fails to sufficiently allege the terms of the agreement, which the plaintiff had with the defendant, and which would entitle him to a commission.

The defendant next contends that its demurrer to the evidence should have been sustained because (a) the evidence did not prove a contract for the payment of any commission; (b) that if any contract was made, concerning the commission on the Price policy, it was with Schuster individually and not as agent of the defendant; (c) that there was no proof that the policy written by the Florida agent was secured by reason of the information received from Schuster's office in Kansas City.

The record disclosed that the defendant filed a written statement with the Department of Insurance of Missouri certifying that it appointed Carlos F. Schuster of Kansas City, Missouri, "agent for the transaction of its authorized business of insurance in the State of Missouri for the...