Wells v. U.S. Fidelity & Guar. Co.

• Decision Date: 22 March 1938
• Docket Number: 28035.
• Citation: 77 P.2d 716,182 Okla. 290,1938 OK 206
• Parties: WELLS v. U. S. FIDELITY & GUARANTY CO. et al.
• Court: Oklahoma Supreme Court

77 P.2d 716

182 Okla. 290, 1938 OK 206

WELLS v. U. S. FIDELITY & GUARANTY CO. et al.

No. 28035.

Supreme Court of Oklahoma

March 22, 1938

Syllabus by the Court.

1. Where the purchaser of a corporate surety bond claims to be uncertain as to who is entitled to collect the premium therefor, or to share in the commission thereon, and pays said money into court and makes the surety company, the agent and broker parties defendant, as between the agent and broker on the claim for the commission, the burden is upon each of them equally to establish the respective claims, and for the one to defeat the other he must show that he was the moving or procuring, cause in the sale of the bond.

2. Where a broker and agent contest with each other as to who is entitled to the commission on the sale of a surety bond, and the evidence to establish the respective claims is conflicting, the judgment of the trial judge, sitting without a jury, will not be disturbed on appeal if there is evidence reasonably tending to support said judgment.

Appeal from District Court, Oklahoma County; Ben Arnold, Judge.

Action by Leo Sanders against O. A. Wells, the United States Fidelity & Guaranty Company and Ancel Earp, transacting business as Ancel Earp & Co., to determine which of the defendants was entitled to collect the premium and commissions for a surety bond executed for the plaintiff wherein each defendant filed a cross-petition. From a judgment in favor of the United States Fidelity & Guaranty Company for the premium and for Ancel Earp, transacting business as Ancel Earp & Co., for the entire commission. O A. Wells appeals.

Judgment affirmed.

Spiers & Bodovitz and Bohanon & Adams, all of Oklahoma City, for plaintiff in error.

Owen & Bullis, of Oklahoma City, for defendants in error.

BAYLESS Vice Chief Justice.

Leo Sanders filed an action in the district court of Oklahoma county, and in the petition filed therein he alleged that through the efforts of O. A. Wells, an insurance broker, he procured United States Fidelity & Guaranty Company, a corporation engaged in the business of writing surety bonds, to execute for him a surety bond, and that he was indebted thereon for the premium in the sum of $23,399.47; that said company was entitled to a portion of said premium, and certain persons claiming to be brokers, or agents of the company, were entitled to portions thereof, the exact amount of which was unknown to him, and he could not pay said sum to any one except at his peril; and he tendered said money into court to abide the judgment of the court as to who was entitled thereto. He named as defendants, the company, O. A. Wells, and Ancel Earp, transacting business as Ancel Earp & Co.

Wells filed an answer and cross-petition, in which he alleged that as an independent broker of bonds he procured this business for United States Fidelity & Guaranty Company, and under an agreement and the usual custom of business with such company, he was entitled to a broker's commission of $4,679.89. The other defendants denied this.

United States Fidelity & Guaranty Company filed an answer and cross-petition in which it admitted executing such bond as surety for Sanders, but alleged that Wells was not its broker, or agent, and was not entitled to any portion of the premium, but, on the contrary, Ancel Earp & Co. was entitled to the entire commission. It does not appear that Wells pleaded further to this.

Ancel Earp filed an answer and cross-petition in which he denied the allegations of agency on the part of Wells, and adopted all of the allegations of the answer and cross-petition of United States Fidelity & Guaranty Company.

The cause was tried to the trial judge, without a jury, and at the conclusion of the evidence, the trial judge rendered judgment for United States Fidelity & Guaranty Company, for the entire sum, with the finding that Earp was entitled to the entire commission, and that Wells was not entitled to any part of the commission. There was positive evidence in the record from which he could have found that either Wells or Earp was the moving, procuring cause. Each man had evidence to sustain his claim. Of this conflicting evidence, the trial court believed Earp's. The costs of the action were taxed to Sanders, and he does not appeal. Wells appeals.

Wells divides his argument into two parts, and subdivides the second part. The first proposition is: "The court committed error in casting the burden of proof on the plaintiff in error, who was one of the defendants and claimants in the cause below." When Sanders had completed his testimony touching upon his reason for seeking the assistance of the court in determining who was entitled to the money, there ensued argument as to who bore the burden of going forward with the proof. That argument is not set out in the record, but at its conclusion the trial judge said, in addressing attorneys for Wells: "In view of the written contract in evidence here, and in view of the fact that your client Mr. Wells, does not claim to be the agent of the U.S F. & G., I think the burden would be on you, to start with anyway." We believe Wells has misconceived the purpose of the ruling. We are of the opinion that the trial court merely ruled that the burden was upon Wells to first introduce evidence. Thereafter, all other defendants introduced evidence. Upon all of the evidence the trial court determined who, in his...