Leader Realty Co. v. Markham

• Decision Date: 06 February 1912
• Citation: 143 S.W. 1104
• Parties: LEADER REALTY CO. v. MARKHAM et al.
• Court: Missouri Court of Appeals

143 S.W. 1104

LEADER REALTY CO. v. MARKHAM et al.

St. Louis Court of Appeals. Missouri.

February 6, 1912.

1. APPEAL AND ERROR (§ 215)—PRESENTATION BELOW — OBJECTIONS TO INSTRUCTIONS — NECESSITY.

Instructions given are preserved for review by exception to the action of the court, though no objections to their being given were made.

2. INSURANCE (§ 182)—BROKERS—ISSUE OF POLICY ON CREDIT OF.

The fact that insurance agents dealt with a broker as the agent of an insured is not conclusive that they did not issue the policies solely on his credit.

3. INSURANCE (§ 230) — CANCELLATION OF POLICY—REPAYMENT OF PREMIUMS.

Where insurance agents dealt with a broker as an independent contractor and accepted his individual credit for the premiums, they could not cancel the policy without a repayment of premiums paid by insured to the broker.

4. PLEADING (§ 433)—DEFINITENESS—SUFFICIENCY AFTER VERDICT.

Where there is no objection before a verdict to a complaint for the definitenesss of its allegations, it cannot be attacked thereafter.

5. TRIAL (§ 251)—INSTRUCTIONS—INCLUSION IN ISSUES.

Where, in an action to recover unearned premiums upon cancellation of policies, there was a general denial to a petition alleging that the premiums were paid, an instruction submitting that on a finding that the defendants dealt, as with an independent contractor, with a broker to whom the plaintiff paid the premiums and issued the policies, afterwards canceled, on his individual credit, the verdict should be for the plaintiff, was proper as within the issue of payment raised.

6. TRIAL (§ 252)—INSTRUCTIONS—SUPPORTING EVIDENCE.

Where, in an action to recover unearned premiums upon canceled policies, there was evidence that the defendants, who were insurance agents, charged the premiums in question against the broker who secured the business and collected the premiums; that they, from time to time, received personal checks from the broker in payment of accounts; and that, while the premiums in question were not paid by him to them for more than a year, no claim or demand was made on the insured therefor— an instruction submitting the question whether defendants dealt with the broker as with an independent contractor and issued the policies on his individual credit was proper.

7. TRIAL (§ 243)—INSTRUCTIONS—CONTRADICTORY.

In an action against insurance agents for unearned premiums not repaid by them upon a cancellation of the policies, an instruction which submits the question whether the defendants extended exclusive credit to the broker to whom the plaintiff paid the premiums is not in conflict with an instruction, on the hypothesis that the broker was the agent of the agents in collecting the premiums from the plaintiff, where the liability of defendants was made to depend upon a finding of either fact, and not of both.

8. INSURANCE (§ 186)—PREMIUMS—PAYMENT TO BROKER.

Where insurance agents had authorized a broker to collect premiums, make deductions therefrom for his commissions, and to pay the residue over to them, and had theretofore ratified such collections by him, a delivery of policies to such broker, and his consequent collection of premiums, amounted to a payment to the agents and precluded them from canceling the policies on the ground that the premiums therefor had not been paid.

9. INSURANCE (§ 186)—PREMIUMS—PAYMENT —SUFFICIENCY.

Though a broker acting as agent for insurance agents had no authority to take checks and notes as payment of premiums, an acceptance of such checks and notes and their payment thereafter constituted a good payment.

10. EVIDENCE (§ 213) — ADMISSIONS — COMPROMISE.

Where a witness, in detailing statements made by a defendant in an action against insurance agents for unearned premiums on canceled policies, expressly stated that, in the conversation in which the statements were made, nothing was said about a compromise, the testimony was not inadmissible as statements of a party made in an effort to effect a compromise.

11. APPEAL AND ERROR (§ 187)—PRESENTATION BELOW—THEORY OF CAUSE.

Where an action against insurance agents for unearned premiums on canceled policies was tried below without objection, as though it were brought against the proper parties, the objection that it should have been brought against the insurers themselves cannot be raised on appeal.

Appeal from St. Louis Circuit Court; Eugene McQuillin, Judge.

Action by the Leader Realty Company against George D. Markham and others. From a judgment for plaintiff, defendants appeal. Affirmed.

Fordyce, Holliday & White, for appellants. Stern & Haberman, for respondent.

CAULFIELD, J.

The appeal in this case was prosecuted to this court, but it was transferred to the Springfield Court of Appeals under the provisions of an act of the Legislature, approved June 12, 1909. See Laws of Missouri 1909, p. 396. See, also, section 3939, R. S. 1909. Afterwards, the Springfield Court of Appeals disposed of the case through an opinion prepared by Judge Cox of that court, but this opinion was ordered not to be published in the official reports for the reason that about the same time the Supreme Court declared the legislative act, which purported to authorize the transfer of cases from one court of appeals to another for hearing and determination, to be unconstitutional. Because of such ruling of the Supreme Court, the case was thereafter transferred by the Springfield Court of Appeals to this court on the theory that the jurisdiction of the appeal continued to reside here and the proceedings had there with reference thereto were coram non judice.

The case has been argued and submitted here and duly considered. We find ourselves unable to concur in the said opinion of Judge Cox for the reason that, following the ruling of the Supreme Court in Sheets v. Insurance Co., 226 Mo. 613, 126 S. W. 413, it was there held that the instructions given on behalf of the plaintiff were not before the court for review, the defendants having excepted to the action of the court in the giving of such instructions but not having made any objections to their being given. As our Supreme Court has since overruled the Sheets ruling (see Harding v. Missouri Pacific R. R. Co., 232 Mo. 444, 134 S. W. 641), it is incumbent upon us to review those instructions in the light of the criticisms made of them by the defendants, as well as to consider and pass upon the other points made by the defendants.

In substance and effect, the plaintiff in its petition charges that, being the holder of certain fire insurance policies issued to it in its name by insurers represented by the defendants and on account of which it had paid more than $1,000 in premiums, it delivered the policies to the defendants for the purpose of having the latter, as agents of the insurers, attach a mortgage clause thereto, the defendants promising to make such indorsement and then return the policies to the plaintiff. That, becoming thus possessed of the policies, the defendants did not return them to the plaintiff as they had promised, but, pretending that the premiums had not been paid thereon, on March 1, 1909, wrongfully canceled the policies without returning to the plaintiff the unearned premiums thereon, amounting to the sum of $559.78, as in the said policies provided; all to the plaintiff's damage in the said sum, etc. The answer was a general denial.

It is unnecessary to state all the facts shown by the evidence. The right of the plaintiff to recover would, we take it, be entirely conceded but that the provision for cancellation contemplates the return of unearned premium only in the case of "the premium having been actually paid," and the defendants contend that the evidence discloses no such payment, and that the court gave improper instructions and refused a proper instruction on that subject. The facts in this respect may be stated as follows: The defendants, as copartners, were the agents for certain insurance companies. One Dana C. Sycks had a desk in their office which was his only place of business and where he received his mail, addressed in the care of the defendants. He had been with the defendants five or six years, first as a clerk, and then as a "broker." It was his business to solicit insurance business from the insured and bring it to the defendants as agents for the insurers, and for that service he received from the defendants part of the commissions which the latter received from the insurers on all such business, the defendants guaranteeing to him that his earnings in that way would amount to at least a certain amount per month. It appears that the books of the defendants consisted of a policy register, journal, and ledger. The register contained a complete description of the policy, including the name of the insured, the amount of the premium, the gross commission, the name of the broker, and his share of the commission. According to defendants' witnesses, the bills for premiums were always made out from the policy register in the name of the insured, and the charges were entered from the bills into...