Scruggs v. Kessinger

• Decision Date: 21 January 1936
• Docket Number: Case Number: 23303
• Citation: 175 Okla. 510,1936 OK 68,53 P.2d 1125
• Parties: SCRUGGS v. KESSINGER
• Court: Oklahoma Supreme Court

1936 OK 68

53 P.2d 1125

175 Okla. 510

SCRUGGS v. KESSINGER

Case Number: 23303

Supreme Court of Oklahoma

Decided: January 21, 1936

Syllabus

¶0 1. APPEAL AND ERROR - Trial - Conclusiveness of Trial Court's Findings on Conflicting Evidence.

Where a law action is tried to the court, and there is a conflict in the evidence on the issues joined, determination of the questions of fact therein is for the trial court, and this court, on appeal, will not weigh the evidence or determine as to the credibility of the witnesses, that question being one for the trial court.

2. SAME - Action by General Insurance Agent to Recover Premiums Alleged to Be Due on Fire Policies - Judgment for Defendant Sustained.

Record examined. Judgment affirmed.

Appeal from District Court, Garfield County; J.W. Bird, Judge.

Action by Gross R. Scruggs, doing business as Gross R. Scruggs & Company, against Stanley Kessinger. Judgment for defendant, and plaintiff appeals. Affirmed.

J.F. Curran, Jr., for plaintiff in error.

Otjen & Carter, for defendant in error.

PER CURIAM.

¶1 This action was tried in the district court of Garfield county, upon an appeal from a Judgment rendered in a justice of the peace court. The action was to recover certain premiums alleged to be due for fire insurance policies of the Agricultural Insurance Company furnished to the said Stanley Kessinger, in the amount of $57.18. A jury was waived in the district court and the case was tried to the court, which rendered a judgment for the defendant.

¶2 The record discloses that the plaintiff is an individual, doing business as Gross R. Scruggs & Company, as a general fire insurance agent at Dallas, Tex., having several companies, among which is the Agricultural Insurance Company; that he has a subagent at Enid, Okla., Earl R. Lee, who has been such subagent since June 23, 1923, under a written contract, until June, 1931; that on May 9, 1930, Lee wrote certain policies, including the one in question, and delivered the same to the defendant; that the name of Gross R. Scruggs did not appear on any of the policies, and that he was not known to the defendant in the transaction; that on June 11, 1930, Kessinger settled with Lee for the premiums on the policies by striking a balance with him as between such premium and an account for jewelry which Kessinger had against Lee, and received from Lee a receipt showing said premium paid; that Kessinger did not know that Lee was agent for Scruggs, or that Scruggs claimed any interest in the premiums until in July, 1931, when the attorney for the plaintiff wrote him demanding payment.

¶3 Lee testified as a witness on behalf of the defendant to the effect that he had settled with Scruggs & Company for the premiums sued for, and the trial court found that the plaintiff did not show that Lee owed him anything. The plaintiff offered in evidence a statement of the account of Lee with him, dated April 17,, 1931, which had been prepared by a certified public accountant at the direction of the plaintiff and a copy of which had been sent by the plaintiff to Lee, which statement showed accounts receivable charged against Lee, including the account against the defendant in the amount of $1,764.75. This statement also showed that as against this charge of $1,764.75 Lee was given credit for $800 salary checks. The evidence did not show that the plaintiff had made the application of said salary or part thereof upon the Kessinger account, but applying the same...