New York Life Ins. Co. v. McDearmon

• Decision Date: 16 November 1908
• Citation: 114 S.W. 57,133 Mo. App. 671
• Parties: NEW YORK LIFE INS. CO. v. McDEARMON et al.
• Court: Missouri Court of Appeals

114 S.W. 57

133 Mo. App. 671

NEW YORK LIFE INS. CO. v. McDEARMON et al.

Kansas City Court of Appeals. Missouri.

November 16, 1908.

Rehearing Denied December 7, 1908.

1. APPEAL AND ERROR (§ 717)—RECORD— FINDINGS OF FACT AND DECLARATIONS OF LAW—WRITTEN OPINION OF TRIAL JUDGE.

A written opinion of the trial judge copied in the bill of exceptions will not be treated on appeal as the equivalent of findings of fact and conclusions of law duly made a part of the record.

2. APPEAL AND ERROR (§ 907)—REVIEW— SCOPE—ABSENCE OF FINDINGS OF FACT AND DECLARATIONS OF LAW.

Where there are no findings of fact or declarations of law in the record on appeal, the evidence will be considered from the standpoint most favorable to the successful party.

3. BONDS (§ 58)—CONSTRUCTION—CONDITIONS PRECEDED BY RECITALS.

In construing a bond with conditions for the performance of duties, preceded by recitals, when the undertaking is general, it will be restrained and its obligatory force limited within the recitals.

4. WORDS AND PHRASES—"OR OTHERWISE."

The words "or otherwise" in law, when used as a general phrase following an enumeration of particulars, are commonly interpreted in a restricted sense, as referring to such other matters as are kindred to the classes before mentioned, receiving an ejusdem generis interpretation (quoting Words and Phrases, Vol. 6, p. 5105).

5. INSURANCE (§ 83)—BOND OF AGENT—CONSTRUCTION —"FOR THE PURPOSE OF ENLARGING HIS BUSINESS OR OTHERWISE."

A bond given to an insurance company to secure performance of the duties of its agent appointed to procure applications for insurance provided that the principal and sureties should be liable for loans or advances made to the agent during his agency "for the purpose of enlarging his business or otherwise." Held, that it was the intent of the parties to secure the payment of loans or advances made for the specific purpose of enlarging the agent's business, and advances for the support of the agent's family, being merely personal, were not for that purpose within the meaning of the bond, and were not covered thereby.

Appeal from Circuit Court, Jackson County; John G. Park, Judge.

Action by the New York Life Insurance Company against Thomas H. McDearmon and others. Judgment for plaintiff, and defendants appeal. Reversed.

Stewart Taylor and J. D. McCue, for appellants. Frank P. Sebree and Thad B. Landon, for respondent.

JOHNSON, J.

Action on a bond brought by the obligee against the principal obligor and his sureties. A jury being waived, the court heard the evidence, and found that defendants were indebted on the bond in the principal sum of $597.26. Judgment was entered for plaintiff for $1,000, the penalty of the bond, and execution was ordered for $759.94, the amount of the debt, with interest to the date of the judgment. Defendants appealed. A number of grounds are assigned for the reversal of the judgment, but the main contention of defendants is that the indebtedness in controversy was not included within the terms of the bond. The view we take of this question renders the discussion of others unnecessary, and compels the reversal of the judgment.

No findings of fact were made nor were declarations of law asked by either party or given by the court. An exhaustive written opinion was delivered by the court, and is copied in the bill of exceptions, but we shall not treat it as the equivalent of findings of fact and conclusions of law duly made a part of the record. "The law makes no provision for an opinion in writing by the judge of the trial court. It was entirely optional with him whether he would write out his conclusions, and, after he had reduced them to writing, whether he would file the paper and when. If he elected to write an opinion, it was not necessary that it should be delivered to the clerk at the time of the rendition of the judgment, but could be handed to him at the pleasure of the judge. In other words, it was not a paper in the case provided by law, but a mere statement of the reasons for his decision, written by the judge for the convenience and satisfaction of the parties, and its delivery to the clerk, was not necessarily contemporaneous with the judgment." Railway v. Holschlag, 144 Mo., loc. cit. 257, 45 S. W. 1101, 66 Am. St. Rep. 417; Rausch v. Michel, 192 Mo. loc. cit. 303, 91 S. W. 99; Nichols v. Carter, 49 Mo. App. 401; Paint & Color Co. v. Shooting the Chutes Co., 74 Mo. App. 661. There being no findings of fact or declarations of law in the record, it becomes our duty to consider the evidence from the standpoint most favorable to plaintiff, the successful party below, and, could we find substantial evidence supporting the judgment, it would be our duty to affirm it. The facts in evidence which are material to the consideration of the question in hand are not in serious controversy.

August 1, 1902, defendant Thomas H. McDearmon, an experienced life insurance agent, was employed by plaintiff, a life insurance company, as a solicitor in Kansas City and vicinity. The contract of employment executed on the date mentioned was in writing, and is quite voluminous, but its contents are not now important except in the respects that the agent was to give his whole time to the service of his employer, was to be paid by commissions on the business he secured, that the company might offset any debt due it from the agent against commissions earned, and that the agent should deliver to the company a bond conditioned for the faithful performance of the contract and of all duties pertaining to the agency. The contract did not require the company to make advances of money to the agent for any purpose. Five days later (August 5th) the bond in suit was delivered to plaintiff. Its pertinent recitations and conditions are as follows: "The condition of this obligation is such that, whereas the above bounden Thos. H. McDearmon has been appointed by said company as its agent for the purpose of canvassing for applications to said company for assurance on the lives of individuals, and of performing such other duties in connection therewith, as may be required by the officers of said company. Now, if said Thos. H. McDearmon shall well and faithfully discharge his duties as such agent, and if said Thos. H. McDearmon shall well and truly pay over all moneys at any time coming into his hands, or at...