Professional Ins. Corp. v. Cahill
| Decision Date | 05 December 1956 |
| Citation | 90 So.2d 916 |
| Parties | PROFESSIONAL INSURANCE CORPORATION, Appellant, v. William Alpheus CAHILL, Appellee. |
| Court | Florida Supreme Court |
Boggs, Blalock & Holbrook, Jacksonville, for appellant.
S. Perry Penland, Jacksonville and Porter 14, 31 F.S.A., brought by the defendant in appellee.
This is a proceeding in the nature of certiorari under Fla.Supreme Court Rule 14, 31 F.S.A., brought by the degendant in the court below, Professional Insurance Corporation. The defendant seeks review by this Court of an interlocutory order of the circuit court striking one of the defenses filed by defendant.
The plaintiff Cahill, respondent here, was employed on July 1, 1948, as a salesman by the petitioner insurance company. The terms of employment were evidenced by a written contract, which contract provided that it could not be waived or modified except in writing, executed by a duly constituted officer of the insurance company. For his services plaintiff was to receive commissions on the premiums from the policies sold. In event the contract was terminated after he had written a certain volume of business, which he did, plaintiff was to receive renewal commissions on policies renewed for the first time at one half the rate otherwise payable for the balance of the first insurance year on policies written by him.
Cahill terminated the contract on September 1, 1951. Subsequently he filed this suit in chancery for an accounting of sums he claimed due him for renewal commissions.
In his bill of complaint Cahill claims that the written contract executed on July 1, 1948 was modified orally by the parties about September 1, 1948. He claims that under the agreement as so modified he was obligated to perform extra services of an executive nature, which are not specifically alleged, and that after the termination of his employment he was to receive full renewal commissions for the full year following the termination of the contract and then renewal commissions at one half the rate as provided in the contract.
In its answer, the defendant insurance company, denied the existence of the oral agreement and asserted several affirmative defenses. One of these, affirmative defense number 2, asserts that the alleged oral agreement was void because of the provision of the contract requiring modification to be in writing executed by a duly constituted officer, and then sets forth that Cahill did perform other services, i. e. (1) assisting other agents and straightening out troubles for which he was paid $25 per week and (2) organizing and directing community health drives for which he received an overwriting commission on all insurance sold on these drives in addition to the regular commissions on insurance sold by him. This defense also set forth the sums of money Cahill had earned in the years 1949, 1950 and 1951 and alleged that he had been amply compensated for his services under both the written and the alleged oral agreement.
Cahill moved to strike this affirmative defense number 2 and the chancellor did so. It is the order striking this defense which is complained of by the insurance company. We are called upon to...
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