The Equitable Accident Insurance Company v. Stout

• Decision Date: 24 February 1893
• Docket Number: 15,498
• Citation: 33 N.E. 623,135 Ind. 444
• Parties: The Equitable Accident Insurance Company v. Stout et al
• Court: Indiana Supreme Court

33 N.E. 623

135 Ind. 444

The Equitable Accident Insurance Company v. Stout et al

No. 15,498

Supreme Court of Indiana

February 24, 1893

Petition for a Rehearing Overruled Oct. 20, 1893.

From the Marion Superior Court.

The judgment is reversed, with instructions to the court to grant a new trial.

J. B Black, for appellant.

R. O Hawkins and H. E. Smith, for appellees.

OPINION

Hackney, J.

The appellant sued the appellees on two bonds, each in the sum of twenty-five hundred dollars, and conditioned for the faithful discharge of his duties by the appellee Stout, as the general agent of the appellant for the State of Indiana, and for the prompt payment to said company of all premiums collected by him for said company. The complaint alleges that said Stout defaulted in the payment of sums received by him for the appellant, and that on the 4th day of February, 1888, said agency was surrendered by Stout and by agreement of said company; and the appellant, said company, selected one Herr and said Stout selected one Glazier, both of whom were expert accountants, who should canvass the books, papers, accounts and transactions of said Stout as such agent; that it was agreed between the appellant and the appellees that the finding of said experts should be final as to all transactions reviewed by them; that they found said Stout to be indebted to the plaintiff, upon transactions exposed to their investigations, in the sum of $ 3,146.77, a statement of which was furnished plaintiff and said Stout over the signatures of said experts; a copy of which statement is set out at full length in the pleading. It is further alleged that said Stout was indebted on account of collections and printing, not included in the investigations of Herr and Glazier, as per bills of particulars marked "Exhibits C" and "D." Upon issues formed, the cause was submitted to a jury, which returned a special verdict, finding that on November 18, 1886, one Coons was the general agent of the appellant for the State of Indiana, and on that day Stout was appointed as such agent by contract, to take effect January 1, 1887; that by contract between the company and Coons, the agency of the latter was surrendered to Stout, to take effect December 1, 1886; that on November 27, 1886, the first of the two bonds in suit was executed; that before the execution thereof, Branham and Egan, the sureties, had seen said contract of November 18, 1886, appointing said Stout such agent, and had no knowledge of any other agreement, and believed said bond to cover only the agency provided in said contract, when by verbal contract between Coons and Stout, said Stout succeeded to said agency December 1, 1886; that Stout acted under said contract of November 18, 1886, from January 1 to January 25, 1887.

By the second finding of the jury, it appears that the company and Stout made another contract of agency dated January 25, 1887, but executed thereafter, and by understanding between them, was to take effect as of that date, and to extend to January 25, 1888; that on March 12, 1887, the appellees executed an additional bond, or the second bond in suit, said sureties having seen the said contract of agency dated January 25, 1887, and believing said bond to cover that contract only, and that Stout continued to act as such agent under said last named contract until January 1, 1888.

By the third finding it appears that from December 31, 1887, to and including February 4, 1888, Stout acted as such agent without any contract of agency, and by the acquiescence of the company, and that on said last named date said company and Stout, by contract, turned over to said Coons said agency for the collection of all claims due said company, and the payment of such shortage as should be found against said Stout.

By the fifth finding it appears, that the company and Stout procured Herr and Glazier, experts, to examine the books, accounts, papers and transactions of said agency by Stout; that there was no agreement that the finding of such experts should be binding on the parties, and that the finding made by them was never acquiesced in by any of the defendants; and, further, that said experts made an examination and stated the result thereof, which statement showed a balance due the company, on collections made, in the sum of $ 3,146.77, and that there were uncollected premiums, orders, etc., to the amount of $ 5,353.95.

By the seventh finding of the jury, it appears that there was no evidence as to collections by Stout, for the company, between December 1, 1886, and January 1, 1887, nor between the 1st and 25th days of January, 1887, and, following these facts, we find this statement: "By the written statement introduced in evidence, as made by Herr and Glazier, it is shown that the defendant Stout collected premiums amounting to the sum of forty-nine hundred and seven dollars and seventy-six cents ($ 4,907.76), and that of the items set out in 'Exhibit C,' attached to and made a part of the complaint, he collected the sum of three hundred and eighty dollars and thirty-four cents ($ 380.34), and he is chargeable with a further sum of ninety-three dollars ($ 93) on account of over deduction, making the total amount of collections so made by the defendant Stout, and the said ninety-three dollars, amount, in the aggregate, to five thousand three hundred and eighty-one dollars and ten cents ($ 5,381.10); that under the said statement and summary introduced in evidence, which was made by Herr and Glazier, the defendant Stout is entitled to a credit in the sum of twenty-one hundred and eighty-eight dollars and seventy-two cents ($ 2,188.72), and, under the items set out in 'Exhibit C,' which is a part of the complaint, the defendant Stout is entitled to a credit in the sum of one hundred and fifty dollars and sixty-seven cents ($ 150.67), and he is entitled to a further credit, on account of commissions, and on account of collections made by the plaintiff upon policies written at the Ohio Falls Car Company works, in the State of Indiana, in addition to those credited to him in the statement made out by Herr and Glazier, which was introduced in evidence, in the sum of eight hundred and forty-three dollars and eighty-three cents ($ 843.83), and for, and on account of, policies written and collections made by the plaintiff upon the business written upon persons working in factories at Haughville, for which no credit was given him in said statement of Herr and Glazier, or in the complaint, in the sum of two hundred and forty-four dollars and ninety-eight cents ($ 244.98), and he is also entitled to a credit in the further sum of two hundred and thirty-six dollars and twenty-two cents ($ 236.22), the amount of certain notes with which he is charged in said statement of Herr and Glazier, there being no evidence that the same were ever collected by the defendant, or by any one for him; that said Stout is entitled to a further credit in the sum of one thousand dollars ($ 1,000), the amount of a certain note executed by the defendant Stout and Julia A. Stout, his wife, to Amanda Donaldson, and by her endorsed to and delivered by the defendant Stout to the plaintiff, which note was afterwards paid by sale of the property of said Amanda Donaldson, for which sum he has never received any credit, making the whole amount to which said defendant Stout is entitled to credit forty-six hundred and sixty-four dollars and forty-two cents ($ 4,664.42)."

By the eighth finding of the jury, it appears that of the amount collected by Stout and with which he is charged in the Herr-Glazier statement and in "Exhibit C," he collected sixteen hundred and one dollars and forty-two cents ($ 1,601.42) after December 31st, 1887, and that as shown by said Herr-Glazier statement, the premiums uncollected to February 4th, 1888, paymaster's orders, agents, etc., amounted to fifty-three hundred and fifty-three dollars and ninety-five cents ($ 5,353.95), and of this sum Stout would be entitled to forty per cent. upon all amounts collected after the 4th day of February, 1888.

From the findings of fact the jury conclude that if Stout is liable for the collections in 1888 the appellant should have recovered $ 716.68. If not so liable the appellees should have recovered. And, further, if Branham and Egan should be liable for such collections, the appellants should recover against them $ 716.68, and if not so liable they should recover.

The appellant filed motions for a venire de novo and for a new trial, each of which motions was overruled and the court gave judgment for $ 716.68, as against the appellee Stout, only.

The assignments of error, by the appellant, bring in review four questions:

1st. The action of the court below in striking out that part of plaintiff's complaint relating to the item of printing in "Exhibit D," filed with the complaint.

2d. The overruling of plaintiff's demurrer to appellees Branham and Egan's separate seventh answer.

3d. The overruling of the appellant's motion for a venire de novo, and

4th. The overruling of appellant's motion for a new trial.

The allegation of the complaint, stricken out, is to the effect that Stout had contracted, in the name of the plaintiff, an indebtedness of $ 50.25 with Hasselman-Journal Company for printing, and that Stout is insolvent.

The contract of agency obligates Stout to pay all expenses of procuring risks, including advertising, transportation, and sub-agencies. The allegation does not bring the items of printing within the obligation so assumed by Stout. It is not alleged that the printing was in the line of advertising, nor does it appear that it was in procuring risks or supplies for his agency or for subagencies.

It is not made to appear that the...