Lessner v. Monarch Ins. Co.

• Decision Date: 16 June 1941
• Citation: 153 S.W.2d 129,236 Mo.App. 161
• Parties: ESTHER LESSNER, SUCCESSOR TO ESTHER LESSNER, EXECUTRIX OF THE WILL OF JACOB LESSNER, DECEASED, APPELLANT, v. MONARCH FIRE INSURANCE COMPANY, A CORPORATION, RESPONDENT
• Court: Kansas Court of Appeals

153 S.W.2d 129

236 Mo.App. 161

ESTHER LESSNER, SUCCESSOR TO ESTHER LESSNER, EXECUTRIX OF THE WILL OF JACOB LESSNER, DECEASED, APPELLANT, v. MONARCH FIRE INSURANCE COMPANY, A CORPORATION, RESPONDENT

Court of Appeals of Missouri, Kansas City

June 16, 1941

Appeal from Jackson Circuit Court.--Hon. Emory H. Wright, Judge.

AFFIRMED.

Judgment affirmed.

W. H H. Piatt and John J. Brauch for appellant.

(1) A broker may enlarge his relationship with the insurer so as to become the agent of such company in one or more or all the particular matters involved in connection with the issuance and delivery of an insurance policy. Gilbert v Malan, 100 S.W.2d 606, and cases cited therein; Rosencrans v. North American Ins. Co., 66 Mo.App 350; Park v. Fidelity & Guaranty Co., 279 S.W. 249. (2) Whether a broker has so enlarged his relationship as to become the agent of the company in particular matters or one or more or all of them and not the agent of the insured is a matter of fact to be determined from the evidence in each particular case. Gilbert v. Malan, 100 S.W.2d 606, and cases cited therein; Hesselberg v. Aetna Life Ins. Co., 75 F.2d 492; Edwards v. Home Ins. Co., 100 Mo.App. 695. (3) Insurance agents who accept individual credit of a broker are not entitled to cancel policies issued without repayment to insured of unearned premiums paid by insured to broker. Leader Realty Co. v. Markham, 163 Mo.App. 314; Lungstrass v. German Ins. Co., 48 Mo. 201; Worth v. German Ins. Co., 64 Mo.App. 583; Trundle v. Providence-Washington Ins. Co., 54 Mo.App. 188; Huggins v. People's Insurance Co., 41 Mo.App. 545. (4) Payment of insurance premium to broker may be made by credit extended to the insured on an account or by settlement of their mutual accounts. Cases cited, supra, (3). (5) When a judgment cannot be substantiated by the evidence and is incorrect as a proposition of law the judgment should be reversed. Weisguth v. Burke, 138 S.W.2d 689; State v. Kelly, 131 S.W.2d 371; Paulette v. Sernes, 103 S.W.2d 573; Paulson v. Hartzel, 93 S.W.2d 1095; Globe Securities Co. v. Gardner Motor Co., 85 S.W.2d 561; Rector v. Consolidated School District, 58 S.W.2d 785; School District of Independence v. Wilcox, 58 S.W.2d 1009; Holland Banking Co. v. Republic National Bank, 41 S.W.2d 815; Kelvinator St. Louis, Inc. v. Schader, 398 S.W.2d 385; Trundle v. Providence-Washington Ins. Co., 54 Mo.App. 188.

Hogsett, Trippe, Depping & Houts and Charles R. Westmoreland for respondent.

(1) When the findings of fact are supported by the evidence and the conclusions of law are consistent with the findings of fact the appellate court will not interfere with the judgment of the trial court. Trundle v. Providence-Washington Ins. Co., 54 Mo.App. 188, 198; Sec. 952, R. S. Mo., 1929; Shapiro Upholstering Co. v. Connors, 45 S.W.2d 892; Kelvinator St. Louis, Inc., v. Schader, 225 Mo.App. 479, 486; Carter Waters Corporation v. Buchanan County, 129 S.W.2d 914. (2) Davis was a general agent of Lessner in procuring insurance for Lessner, including the policy in question. Edwards v. Home Ins. Co., 100 Mo.App. 695, 708; Rolens v. Keller Construction Co. et al., 24 S.W.2d 1077; Wolf v. Fire Ins. Co., 219 Mo.App. 320. (3) Davis was merely a special or limited agent for defendant (respondent) for the specific purpose of delivering respondent's policy and collecting the premium. Hesselberg v. Aetna Life Ins. Co., 75 F.2d 492; Luthy v. Northwestern National Ins. Co., 224 Mo.App. 474, 20 S.W.2d 299; Park v. Fidelity & Casualty Co., 279 S.W. 249; Edwards v. Home Ins. Co., 100 Mo.App. 605; Pringle v. Aetna Life Ins. Co., 123 Mo.App. 710, 714, 101 S.W. 130, 131; Smith v. Fire Ins. Co., 320 Mo. 169; Bennett v. Royal Union Mutual Life Ins. Co., 112 S.W.2d 142, 143; Pepper v. West Plains Telephone Co., 34 S.W.2d 543; Grace v. Ins. Co., 109 U.S. 278; Buck v. Ins. Co., 209 Mo.App. 302. (4) Davis was not an independent contractor in procuring the insurance from child for Lessner. Sec. 5904, R. S. Mo. 1929; Gentry v. Conn. Mut. Life Ins. Co., 15 Mo.App. 215; Farber v. American Automobile Ins. Co., 191 Mo.App. 324.

OPINION

CAVE, J.

--This is a suit to collect an alleged paid and unearned premium in the sum of $ 263.64 on a fire insurance policy. The suit originated in a Justice of the Peace Court in Jackson County, was tried there, resulting in judgment for defendant. Plaintiff appealed to the circuit court, where said cause was tried on January 4, 1940, before the court, a jury having been waived. On February 5, 1940, the court entered judgment for defendant. Plaintiff appeals from this judgment.

It appears from the record that on the day the court rendered judgment, it also made what is designated as "Findings of Fact," and also "Conclusions of Law." But the record does not disclose that there was ever any request made of the court by either party for a "Findings of Fact" or "Conclusions of Law," and the briefs concede no such request was made. Under such circumstances, we conclude that there was no "findings of fact" or "conclusions of law," as contemplated by section 952, Revised Statutes Missouri 1929, and the memorandum filed by the court amounts to nothing more than its reasons for the conclusion reached; it does not have the effect of a special verdict. [Joblin v. Surety Co., 193 Mo.App. 132, 138, 182 S.W. 143.] Therefore, the finding must be treated as a general finding or verdict, and conclusive on this court if supported by substantial evidence. [Shapiro Upholstering Company v. Connors, 45 S.W.2d 892, and cases cited therein.]

The plaintiff, under "Assignments of Error," makes four specific complaints, all of which are directly assailing the memorandum of "findings of fact" filed by the court, and, according to our view of this record, she is assailing something which does not exist. There was no "Findings of Fact" such as the trial court is required to make under Section 952, supra.

Under "Points and Authorities" there are four separate errors charged. The first two are again assailing certain specific findings made by the court in the memorandum filed, and, as above stated, we hold such matters are not before us for decision.

Point three is stated thus: "Insurance agents who accept individual credit of a broker are not entitled to cancel policies issued without repayment to insured of unearned premiums paid by insured...