Terrill v. Western Am. Life Ins. Co.
| Decision Date | 03 August 1973 |
| Docket Number | No. 9635,9635 |
| Citation | 513 P.2d 390,1973 NMSC 80,85 N.M. 456 |
| Parties | Buster TERRILL, Plaintiff-Appellee, v. WESTERN AMERICAN LIFE INSURANCE COMPANY, a New Mexico corporation, Defendant-Appellant. |
| Court | New Mexico Supreme Court |
Plaintiff brought this suit in the District Court of Curry County to obtain an accounting for renewal commissions on life insurance policies sold, amended or converted through his efforts and for judgment for any unpaid commissions due him. Plaintiff's complaint was based on a letter agreement dated October 15, 1965, providing for 7 1/2% of lifetime vested renewals on particular policies that he sold, amended, or converted.
Defendant raised only the affirmative defenses of res judicata and that all the monies and accountings had been paid or made.
Judgment for the plaintiff was entered on October 2, 1972 and defendant appealed.
The defendant life insurance company contends that the agreement to pay and the payment of renewal commissions on these policies beyond ten years from the date of each policy is illegal. This contention is based completely on the testimony of its president and it purports to show that the superintendent of insurance had ordered the defendant to discontinue its payment of commissions beginning with the eleventh year of each questioned policy.
The defendant did not affirmatively plead illegality as a defense in its answer as required by Rule 8(c) (§ 21--1--1(8)(c), N.M.S.A.) nor did the defendant at any time during or after the hearing move to amend its answer to include this affirmative defense as provided by Rule 15(b) (§ 21--1--1(15)(b), N.M.S.A.). In spite of this, the testimony of defendant's president at trial raised the issue of illegality and was litigated without objection and specifically ruled upon by the trial court. Therefore, the defendant's failure to affirmatively plead or move to amend at trial does not become an issue on appeal.
The defendant attacks as erroneous three specific findings of fact made by the trial court.
'6. The plaintiff has not been paid for various policies in which he has a vested lifetime renewal for the period of January 1, 1970, to May, 1972, resulting in commissions due him for said period in the amount of $2,586.99.
7. The plaintiff has earned commissions due him by defendant for all subject...
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...as provided by NMSA 1978, Civ.P. Rule 15(b) (Repl.Pamp.1980), an issue may be otherwise raised. See Terrill v. Western American Life Insurance Co., 85 N.M. 456, 513 P.2d 390 (1973). Where an issue in the nature of an affirmative defense is raised and litigated without objection and specific......
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...be considered an affirmative defense. Prinz v. Great Bay Casino Corp., 705 F.2d 692 (3rd Cir.1983); Terrill v. Western Am. Life Ins. Co., 85 N.M. 456, 513 P.2d 390 (1973); Posey v. Dove, 57 N.M. 200, 257 P.2d 541 (1953); but see Eslinger v. Henderson, 80 N.M. 479, 457 P.2d 998 (Ct.App.1969)......
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