Metropolitan Life Ins. Co. v. Miller

• Decision Date: 10 February 1903
• Citation: 71 S.W. 921,114 Ky. 754
• Parties: METROPOLITAN LIFE INS. CO. et al. v. MILLER.
• Court: Kentucky Court of Appeals

71 S.W. 921

114 Ky. 754

METROPOLITAN LIFE INS. CO. et al. v. MILLER.

Court of Appeals of Kentucky.

February 10, 1903

Appeal from circuit court, McCracken county.

"To be officially reported."

Action by William L. Miller against the Metropolitan Life Insurance Company and others. From a judgment in favor of plaintiff defendants appeal. Reversed.

J. D Macquot and James Campbell, for appellants.

Hendrick & Miller, for appellee.

HOBSON J.

Appellee Miller, was agent for appellant Metropolitan Life Insurance Company, and appellant the National Surety Company was surety on his bond. It was the duty of Miller to pay over to the company weekly all the money he collected, and his commissions were paid back to him by the company, from the home office a few days later. The mode of doing the business was to collect the premiums from the policy holders weekly. The policy holder had a book, and in this his weekly payments were entered by the agent when made. The agent had a similar book, in which the payments were also entered, and he settled weekly with the superintendent by his book. Once in three months the agent's book was compared with the policy holders' books, to see if he had accounted to the company on his book for all the money that he had collected, as shown by the policy holders' books. Miller left the service of the company in December, 1899. The superintendent then went around with Miller, comparing his book with the policy holders' books, and found that Miller had not entered on his book some collections he had made, amounting to $9.34, and Miller executed to the company his duebill for the amount. Subsequent investigation showed that he was behind in a larger amount, and, while he says that he did not agree as to the correctness of the settlement, the weight of the evidence is the other way. Still he paid nothing, and on January 25, 1900, his surety in his bond, the National Surety Company, wrote him a letter, telling him that it had paid the insurance company $15.58 for a shortage in his account, and calling on him to reimburse it. To this letter he made no reply. On February 20th the surety company again wrote him in regard to the shortage it had paid, and to this letter he made no reply. The agents of the insurance company had some interviews with him near this time about settling the remainder of the shortage, but nothing came of it. Things ran along for some months, and then, at the request of the surety company, the insurance company directed its agent to institute a criminal proceeding against Miller for embezzlement. A consultation was held with an attorney, and on his advice a warrant was issued on July 14, 1900. Miller was arrested under the warrant, remaining in custody about an hour before he gave bond. This was on Saturday. The case was called on Monday morning, and laid over until Thursday; one of the witnesses having left the state. On Thursday morning, before the county attorney reached the court house, the case was called again; and there being no witnesses present, and no one to prosecute, the case was dismissed. Miller then filed this suit to recover damages of the two corporations, and their agents taking the proceeding against him, on the ground that the prosecution was malicious and without probable cause. The jury found in favor of the plaintiff, and assessed the damages at $1,800, and the defendants have appealed.

The court properly instructed the jury as to the advice of counsel, constituting probable cause, but he did not give any instruction on the...