Phillips v. American Nat. Assur. Co.

• Citation: 58 S.W.2d 814,227 Mo.App. 1136
• Parties: W. M. PHILLIPS, RESPONDENT, v. AMERICAN NATIONAL ASSURANCE CO., APPELLANT
• Decision Date: 06 March 1933
• Court: Court of Appeals of Kansas

58 S.W.2d 814

227 Mo.App. 1136

W. M. PHILLIPS, RESPONDENT, v. AMERICAN NATIONAL ASSURANCE CO., APPELLANT

Court of Appeals of Missouri, Kansas City

March 6, 1933

Appeal from the Circuit Court of Jackson County.--Hon. A. Stanford Lyon, Judge.

Judgment affirmed.

Fisher & Whitten for respondent.

Jones Hocker, Sullivan & Gladney, Willard A. McCaleb and Wm. R Moore for appellant.

OPINION

SHAIN P. J.

This is an action by the plaintiff, who sues on a contract had with the defendant, wherein the plaintiff seeks to recover for commissions, alleged to be due him on policies written by him, but wherein the renewals were collected for, by defendant, after the termination of the plaintiff's employment.

The defendant joins issue by denying liability and by interposing a counterclaim for the money alleged due from the plaintiff to the defendant.

A trial was had before Hon. A. Sanford Lyons in the Circuit Court of Jackson County, Missouri, jury being waived.

Judgment was had for the plaintiff on his claim, in the sum of $ 1514.12, and for the defendant on its counterclaim in the sum of $ 6.93.

From this judgment, an appeal was duly prosecuted by the defendant and cause was sent to this court.

The evidence discloses, that a contract was entered into, by and between the respondent and the appellant, on February 9, 1928. By the terms of the contract, the respondent was appointed as an agent for the appellant to solicit applications for life insurance in a designated territory, embracing the State of Kansas and certain counties in Missouri.

To determine the issue herein, it becomes necessary to give interpretation to the contract, entered into by the parties.

Pertinent to the direct issue, herein involved, are sections Twenty (20) and sections Twenty-four (24) of the contract. Section Twenty (20) is in words and figures as follows:

"If the amount of insurance written by the Party of the Second Part and Sub-Agents during the first year of this contract, upon which policies are issued and the net premiums paid thereon within the year or within sixty (60) days thereafter, shall equal or exceed Five Hundred Thousand Dollars ($ 500,000), then the Party of the Second Part shall be entitled to a ten (10) per cent renewal commission on the first renewal premiums which shall be paid to the Company. And providing the amount of insurance written by the Party of the Second Part and Sub-Agents during the second year of this contract, upon which policies are issued and the annual premiums paid thereon within the second year or within sixty (60) days thereafter shall equal or exceed One Million Dollars ($ 1,000,000), then the Party of the Second Part shall be entitled to the following renewal commissions on the second renewal premiums (i. e., on the third year premiums), and on renewal premiums thereafter, when paid to the Company, as below specified, according to the persistency of each year's business, such persistency to be determined on the basis of the amount of business which renews for the second year."

Section Twenty-four (24) is in words and figures as follows:

"It is mutually agreed by and between the Parties hereto that should this Contract be terminated for any cause, then the schedule for renewal commissions as herein provided shall operate as follows:

"(a) For two years continuous service under this Contract, Party of the Second Part shall be entitled to renewal commissions for three (3) renewal years, and for three years continuous service, all renewals shall be regarded as fully earned and will be paid in accordance with Sections 20, 21, 22 and 23."

It stands admitted that the appellant, if liable, is liable for $ 1514.12 on the respondent's claim. It further stands admitted, that the respondent owes the appellant $ 6.93 on its counterclaim.

OPINION.

The appellant makes assignment of errors as follows:

I.

"The Court erred in refusing the defendant's declaration of law letter "A," submitted at the close of plaintiff's evidence and at the close of the entire case, which declaration of law was as follows:

"'The Court declares the law to be that if it believes and finds from the evidence that the plaintiff, on or about the 1st day of December, 1928, terminated and canceled the contract of agency between the plaintiff and defendant, dated February 9, 1928, and that the cancellation of said contract was to, and did, become effective on December 31, 1928, then the plaintiff was not entitled to any commissions on premiums paid under policies procured by the plaintiff under said contract during the second of any subsequent policy years.'

II.

"The Court erred in finding and holding that plaintiff was entitled to any renewal commissions after the termination of his contract.

III.

"The Court erred in permitting plaintiff to introduce evidence of oral conversations with the president of defendant company prior to the making of the contract respecting the terms and conditions thereof and the meaning and effect of certain provisions thereof."

Assignment one (1) and two (2) are both directed at respondent's right to recover and can be considered together.

The appellant cites a long line of cases that hold, that unless it be expressly stipulated or is clearly to be gathered from the contract, an insurance agent has no right to commissions on renewals after the expiration of his agency.

The above is certainly prime law. To determine the issue herein, the above well-founded principle of law must be applied, and unless it can clearly be gathered from the contract in issue, that the respondent is entitled to collect for commissions on renewals, the respondent cannot recover.

The issue involved herein has often been the subject of Judicial opinion, both in this and other States.

The law touching such contracts, as is here in issue, is well established in this State. The appellant cites, in its brief, three of the most outstanding court opinions of Missouri, dealing with the direct issue herein. [Locher v. New York Life Insurance Co., 200 Mo.App. 659, 208 S.W. 862; King v. Raleigh, 100 Mo.App. 1, 70 S.W. 251; Arensmeyer v. Metropolitan Life Insurance Co., 254 Mo. 363, 375, 162 S.W. 261.]

It will be noted that the contract in issue in the Locher case contains the following:

"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...