Locher v. New York Life Insurance Company, a Corp.
| Decision Date | 04 February 1919 |
| Citation | 208 S.W. 862,200 Mo.App. 659 |
| Parties | W. HORACE LOCHER, Appellant, v. NEW YORK LIFE INSURANCE COMPANY, a corporation, Respondent |
| Court | Missouri Court of Appeals |
Argued and Submitted January 7, 1919.
Appeal from the Circuit Court of the City of St. Louis.--Hon. Thomas L. Anderson, Judge.
AFFIRMED.
STATEMENT--Action by plaintiff to recover commissions on renewals on policies written by him while in the employ of defendant but renewals thereon collected by the defendant after the termination of the employment of plaintiff. It is averred that his commissions on all renewals of policies secured by him while he was with the company, and which had been paid to the company during his connection with it, had been paid him, but that those renewals collected by the company on such policies after the termination of his employment had not been paid him and were due, amounting, as he originally claimed, to $ 3596.90. During the trial of the cause, however, it was in evidence and agreed, that the amount of the renewals collected on such policies after the termination of plaintiff's employment amounted to $ 3155.69, it being claimed by plaintiff that to this was to be added interest to the amount of $ 573.57. In his petition plaintiff had claimed that he had not sufficient knowledge or information to know or to exactly state the full amount due him under the contract and asked the court that the defendant be ordered to account for all of the renewal commissions and each and all of them. But by the agreement reached at the trial, as above stated, the necessity for this was obviated, it being agreed that if plaintiff recovered, he would be entitled to $ 3155.69, plus interest, a total of $ 3729.26.
The answer, after a general denial, pleaded a modification of the original contract in certain respects, as also various other affirmative defenses, which in view of the outcome of the trial, it is not necessary to set out. This answer was met by a general denial by way of reply.
At the conclusion of the introduction of evidence on the part of plaintiff, the court, at the request of the defendant instructed the jury that under the pleadings and law and evidence in the case plaintiff could not recover and their verdict should be for defendant. This was objected to exception saved by plaintiff; the jury rendering a verdict in accordance with the direction of the court and judgment following in favor of defendant, plaintiff has duly appealed.
Plaintiff gave in evidence by way of an exhibit, the list of the policies he had written during the period of his employment and, as before herein set out, the amounts due him on renewals, if he was entitled to them, was agreed upon. He also introduced in evidence correspondence between him and the defendant as also transactions between him and the representatives of the defendant, from all of which it appeared that the original contract of employment, which was dated January 25, 1898, and covered the period from that date to January 31, 1899, had been extended from year to year until his discharge in November, 1911. This contract provided that the defendant, party of the first part, appoints the plaintiff, party of the second part, as its agent for the purpose of canvassing for applications for insurance on the lives of individuals, defines his powers as agent, puts limitations on them, and assigns as the territory in which he is to operate, the city of St. Louis, Missouri. Among other things it was agreed that the party of the second part plaintiff, "shall act exclusively as agent for said party of the first part, and as such agent shall devote his entire time, talents and energies to the business of the agency hereby established, and in the conducting of it shall be governed strictly by the instructions which he may receive from time to time, from said party of the first part."
The material sections of the contract upon which this controversy turns are these:
First Section 20.
"It is agreed that said party of the second part shall be allowed, under this agreement, the following compensation only, unless otherwise expressly stipulated in writing, namely, a commission on the original or renewal cash premiums which shall, during his continuance as said agent of said party of the first part, be obtained, collected, paid to and received by said party of the first part up to and including the first year of assurance (should his agency continue so long) on policies of insurance effected with said party of the first part, by or through said party of the second part, which commission shall be at and after the following rates."
Following this is a table under the headings, "On the original cash premiums for the first year of assurance," and "Accumulation Period," and enumerates eight different forms of policies running for fifteen or twenty years, with the commissions plaintiff is to receive on the several forms, the commissions running from twenty-five to thirty-five per cent. These are lettered from A to I inclusive. A final one (1) provides:
"On all other plans of policies (excluding annuities) paid by more than five annual premiums, a single and only brokerage commission of thirty per cent."
By section twenty-one it is agreed that in addition to the compensation specified in section 20, "subject to all the terms and conditions of said section," the company will allow and pay to plaintiff, "for traveling and other expenses, an extra commission of twenty per cent on the original first year's or parts thereof premiums paid to and received by said party of the first part in cash, in accordance with the terms of this agreement, upon business procured by or through" the plaintiff upon plans of policies designated as classes A, B, C, D, E, F, G and H in section 20.
Second, section 22, which is as follows:
"It is agreed that should the procurements of placed insurance by or through said party of the second part, during the period beginning January 25, 1898, and ending January 31, 1899, amount to one hundred thousand dollars ($ 100,000), or more, the annual premiums on which shall have been paid to and received by said party of the first part in cash in due course during said period, or within sixty days thereafter, on plans of policies designated as Classes A, B, C, D, E, F and G, in section 20 hereof, under the terms and conditions of this agreement, said party of the second part shall be entitled to a commission of seven (7) per cent. on such premiums of business written during said period, on plans of policies designated as Classes A, B, C, D, E, F and G, in section 20 hereof, as shall renew for the years of assurance stated below, subject to all the terms and conditions of said section 20, as follows:"
Here follows a list or tabulation of amounts running from $ 100,000 to $ 500,000. That for $ 100,000 reads thus:
"If $ 100,000 is secured, as above, said commission to be allowed on the renewal premium paid on said business for the second year of assurance."
The like language is used for $ 150,000 of insurance secured for the second year of assurance; $ 150,000 for the third year; $ 200,000 for the fourth year; $ 250,000 for the fifth year; $ 300.000 for the sixth year; $ 350,000 for the seventh year; $ 400,000 for the eight year; $ 450,000 for the ninth year, and $ 500,000 for the tenth year of assurance. It will be noticed that by this section XX 22 the contract was to cover the period from January 25, 1898, to January 31, 1899, when it was then to end. It was renewed from time to time, usually in this form, taking that of February 1, 1899, for example, which, addressed to plaintiff, signed by one of the vice-presidents of defendant, reads:
Practically the same form of letter was written for each of the following years until 1903, each renewal distinctly stating that the contract was renewed, "subject to all the terms and conditions of" the contract of January 25, 1898, and that it is agreed and understood In 1903, the extension was made in this form by a letter addressed to plaintiff and signed by the superintendent of agencies of the defendant, dated January 10, 1903, as follows:
"Referring to your agreement with this company of January 25, 1898, and subject to all its terms and conditions, it is agreed, until further notice, that the bonus renewal offer provided for in section 22 of said agreement, is hereby renewed, under the same terms and conditions, from January 1, 1903, for each twelve months' period until December 31st."
All these were accepted in writing by plaintiff and under this letter of January 10, 1903, he seems to have remained in the employ of the company under these various extensions until November 16, 1914, when written notice, signed by its vice-president, was served on plaintiff, notifying him that his "employment agreement with this company, bearing date January 25, 1898...
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