Signs v. Bankers Life & Cas. Co.

• Decision Date: 07 October 1960
• Docket Number: No. 15670,15670
• Parties: Kenneth SIGNS, Addellant. v. BANKERS LIFE & CASUALTY COMPANY, Appellee.
• Court: Texas Court of Appeals

Page 67

340 S.W.2d 67

Kenneth SIGNS, Addellant. v. BANKERS LIFE & CASUALTY COMPANY, Appellee.

No. 15670.

Court of Civil Appeals of Texas, Dallas.

Oct. 7, 1960.

G. H. Kelsoe, Jr., Dallas, for appellant.

Mays, Robertson & Bohannon, Dallas, for appellee.

YOUNG, Justice.

Rule 166-A, Summary Judgment Proceedings. The suit of appellant Signs in trial court reflects elements of distinct novelty. As an agent of defendant company, his claim is based on bulletins and oral representations of the company's branch manager; alleging a performance of the terms of said bulletins and oral representations, thereby becoming entitled to the sum of $10,000 in lawful United States currency, but instead was tendered payment in worthless Confederate money. Appellee's motion for summary judgment was supported by affidavits; the answer of plaintiff Signs likewise having his own affidavit in support. The court on hearing found an absence of 'a genuine issue of any material fact,' rendering judgment that plaintiff take nothing, followed by this appeal.

The first amended petition of plaintiff alleged a written contract with defendant to sell its insurance but that the instant suit was 'based upon bulletins of the company furnished to the plaintiff and oral statements made by the branch manager of the company unto your plaintiff'; particular allegations being as follows: 'Petitioner would show that near the end of November 1957, the Branch Manager of the respondent company herein, namely, C. R. Barner, did notify and advise your petitioner that the respondent company was going to distribute one million dollars to the deserving agents throughout this branch of respondent's company, stating that the reason for such distribution would be to aid the company in its income tax matters.' Said branch manager further advised that the distribution of the one million dollars in the month of December 1957, would be made as follows: 'All agents with a total Life volume in December of: (1) 10,000 or more will receive . . . $1,000 (2) 20,000 or more will receive . . . $10,000 (3) 30,000 or more will receive . . . $50,000 (4) 40,000 or more will receive . . . $100,000. Petitioner would show that he, under the above plan, earned $10,000 and that when the time for distribution came, viz. January 4, 1958, the same was postponed but that shortly thereafter, and after petitioner had been led to believe and to rely upon the representations of the branch manager of said respondent company, and after he had worked and earned the $10,000 he was advised and paid in worthless Confederate money. Petitioner would show that the representations which were made to him were reasonable, that he relied thereon, and that he performed under said representations so as to authorize him to receive $10,000 and thus your said petitioner has been damaged by virtue of the respondent company failing to fulfill said obligation in the sum of $10,000.'

Though lengthy, affidavits of the respective parties must be quoted in greater part; first being that of C. R. Barner, Branch Manager of defendant, as follows:

'I have been employed by Bankers Life and Casualty Company for approximately nine years and since the month of October, 1953, have been Branch Manager of the Agency force of said Company, and served in this capacity since February, 1956, at Dallas, Texas, and as such Branch Manager, subject to the approval of the Company, I interview agents and other personnel and submit their applications for employment for action to the home office, and supervise the servicing of policies in my Branch and promote, through agents, the securing of new business for the Company. I am not an officer of Bankers Life and Casualty Company and have no authority whatever to vary terms of agents' or other contracts made with the Company, but this must be done by an officer of the Company at its home office in Chicago.

'I am acquainted with the Plaintiff in this case, Kenneth Signs, and have known him since about the month of November, 1957; that on or about the 20th day of November, 1957, Kenneth Signs went to work for Bankers Life and Casualty Company as an agent under a written contract dated November 20, 1957, a copy of which is attached hereto marked Exhibit 'A' and made a part hereof the same as if copied herein in full; that Kenneth Signs worked under me in the Branch at Dallas, Texas, and I know of my own personal knowledge that the only contract he had with the Company is that contract, a copy of which is marked Exhibit 'A' and attached hereto; that Kenneth Signs only worked for the Company a short time and terminated his agency with the Company on or about the 1st of February, 1958.

'That part of my duties as Branch Manager are to hold sales meetings with the agents and district managers in my Branch and stimulate interest of the district managers and agents in carrying on their work in an efficient and business-like manner. In furthering these activities, we usually at the end of a calendar year, hold an annual seminar party for the agents and their wives which is a fun party, intended to bring the agents, their supervisors, and the company closer together.

'During the month of December, 1957, in preparation for our annual seminar party, which was tentatively set for January 4, 1958, we tentatively set a program with a bunch of fun promotions in order to stimulate interest among the agents. Among the promotions planned for this seminar party was a dead agents' song-fest. Any agent who had written less than $10,000 in life insurance for the month of December was automatically dubbed a dead head or a dead agent, and was required to join with a group of other dead agents and entertain his wife and the other guests at the party in singing a number of songs before the entire assembly. Among other things, we publicized that the wives of top life writers would be honored at the party with special orchid corsages and plans were made to place agents (and their wives) who wrote over $25,000.00 in life insurance during the month of December at a special table of honor. As a part of this fun program, about the 18th of December, 1957, I announced that we would have a mystery life contest and that a series of bulletins would be issued regarding the same. Following this up, I issued a bulletin announcing that a million dollars would be distributed at the seminar party on January 4, 1958, and announced that more details concerning this mystery and matters with the seminar would be forthcoming later. In this bulletin it was stated that an agent with a total life volume in December 1957 of $10,000.00 would receive $1,000.00; those with a volume of $20,000.00 or more would receive $10,000.00; those with a volume of $30,000.00 or over would receive $50,000.00; and those with a volume of $40,000.00 or over would receive $100,000.00. This was strictly a fun contest which I set up for the purpose of our seminar party and of which the home office in Chicago had no knowledge. I am familiar with life insurance premium rates and know that it would be impossible to pay such sums in spendable money for the volume of life insurance written, as to pay $100,000.00 on a $40,000.00 volume of life insurance would take more than 100 years for the gross premiums collected on this amount of insurance to pay the Company this sum of money. In the sales meetings following this bulletin it was fully explained that this money was not spendable and the following day, December 20, 1957, an additional clue to this life contest was given to all agents wherein it stated that the clue to the one million dollars was 'it's the best ever printed in the South.' In all sales meetings, many of which were attended by Kenneth Signs, it was stressed that the one million dollars to be distributed was not spendable money, and it was a standing joke among all the agents, including Kenneth Signs, that they could light their cigars and cigarettes with $1,000.00 bills. This letter stating that the one million dollars was 'the best ever printed in the South' was given to the agents on three different occasions, to-wit, on or about December 20, December 23, and December 27, 1957.

'On one occasion, on or about December 27, 1957, Kenneth Signs came to me to discuss some personal problems and at such time stated to me that he, Kenneth Signs, knew that the money to be distributed was Confederate money and that even if it were spendable, it would not be sufficient to do him any good, as he had certain financial and domestic problems arising out of previous employment.

'I am familiar with the business solicited by Kenneth Signs and the applications he submitted, and know, of my own knowledge, that Kenneth Signs received commissions on the business he did write under the terms of his written contract with the Company, Exhibit 'A' hereto. That the business written by Kenneth Signs was almost entirely upon a monthly premium basis and, while he was agent for the Company he submitted twenty-seven applications for insurance, one of which was rejected by the Company, and twenty of which lapsed for non-payment of the second monthly premium.

'Attached hereto marked Exhibits 'B' through 'P', inclusive, are affidavits of persons familiar with the Life Promotion during December 1957 and who knew Kenneth Signs and discussed this contest with him and to whom Kenneth Signs stated that he knew that the money to be given away was not spendable and had no value.'

Affidavit of plaintiff Kenneth Signs is as follows:

'Your affiant was employed as an agent of Bankers Life and Casualty Insurance Company during the year 1957, and that after your affiant became employed by the Bankers Life and Casualty Company; vis. sometime in the latter part of November or December the Company, through its branch manager, ...