Wendel v. Metropolitan Life Ins. Co.

• Decision Date: 07 November 1928
• Docket Number: 6336.
• Parties: WENDEL v. METROPOLITAN LIFE INS. CO. et al.
• Court: Montana Supreme Court

272 P. 245

83 Mont. 252

WENDEL v. METROPOLITAN LIFE INS. CO. et al.

No. 6336.

Supreme Court of Montana

November 7, 1928

Rehearing Denied Dec. 1, 1928.

Appeal from District Court, Lewis and Clark County; A. J. Horsky Judge.

Action by Edward J. Wendel against the Metropolitan Life Insurance Company and others. From a judgment against the named defendant, it appeals. Reversed and remanded, with direction.

E. C Day and Carl Rasch, both of Helena, for appellant.

J Miller Smith, Paul W. Smith, and David R. Smith, all of Helena, for respondent.

GALEN J.

This is an action for damages for malicious prosecution. Upon issues being joined, the cause was tried to a jury and resulted in a verdict in plaintiff's favor for the sum of $5,000 against the defendant Metropolitan Life Insurance Company, upon which judgment was duly entered for the amount thereof. The defendant Metropolitan Life Insurance Company has prosecuted appeal to this court from the judgment. In disposition thereof, in view of the appellant's assignments of alleged errors, we are called upon to consider and determine only the question of the sufficiency of the evidence to sustain the verdict and judgment. The district court denied the defendant's motion for a nonsuit interposed at the conclusion of the plaintiff's case in chief, and, also, motion for a directed verdict at the conclusion of all of the evidence, on account whereof error is by the appellant assigned. There was no motion made for a new trial, and therefore we have examined the record merely to ascertain whether the verdict and judgment are supported by any substantial evidence. Clifton, Applegate & Toole v. Big Lake Drain District, 82 Mont. 312, 267 P. 207.

We have carefully read and considered the pleadings and all of the evidence in the case. It appears that on or about the 19th day of February, 1926, the defendant J. M. O'Keefe, general agent for the Metropolitan Life Insurance Company in the Great Falls district of the state of Montana, made and filed a complaint on oath in a justice court of the township of Helena, Lewis and Clark county, charging the plaintiff with the crime of grand larceny, as follows:

"The said Edward Wendel did on or about the 30th day of October, 1925, at the county of Lewis and Clark, in the State of Montana, willfully, unlawfully and feloniously appropriate to his own use and benefit one hundred fifty dollars ($150.00) lawful money of the United States, of the personal goods and property of the Metropolitan Life Insurance Company, a corporation organized under the laws of the state of New York, and doing business in the state of Montana, the said defendant at said time and place having come into the possession of said money as bailee, and having collected the same from various persons holding policies of insurance in said Metropolitan Life Insurance Company, contrary to the form, force and effect of the statute in such case made and provided and against the peace and dignity of the state of Montana. Said complainant therefore prays that a warrant may be issued for the arrest of the said Edward Wendel and that he may be dealt with according to law."

Upon such complaint the justice of the peace issued a warrant for the plaintiff's arrest, under and by virtue of which the plaintiff was, on or about February 19, 1926, arrested in the city of Butte and imprisoned in the county jail of Silver Bow county for a period of about three hours, after which time he was released, and thereupon proceeded to the city of Helena to respond to the charge, appeared before the justice, entered a plea of not guilty thereto, and was admitted to bail in the sum of $500. The case was then permitted to stand in the justice court without any further action until September 9, 1926, when the defendant moved to dismiss the action for the state's failure diligently to prosecute it as by the law required. On September 30, 1926, the motion was sustained and the case dismissed.

The determinative question is whether there was sufficient probable cause to justify the plaintiff's arrest.

The evidence discloses that the plaintiff worked for the appellant company for a period of about four years. He began as an agent in December, 1921, and continued as such until January, 1925, when he was made assistant district manager of the Helena section of the appellant's business in the Great Falls district. He worked as such assistant manager from the time of his appointment until about November 9, 1925, when he resigned and left the company's employment. As assistant manager he did the necessary office work, collected premiums on insurance policies, and solicited and wrote insurance for the appellant. His contract with the appellant is dated January 9, 1925, and thereby he agreed "to obey all the rules of the company contained in the Manual and Instruction Book, as the same now are and may hereafter be, and all the rules of the company, however they may be published or communicated." The plaintiff thereby further bound himself to the company in the following language, to wit:

"I further agree that I have no greater or other power or authority than herein set forth; and that my appointment as assistant manager and this agreement, as well as the duties and emoluments thereunder, may be revoked, terminated, changed or modified from time to time by the company in its discretion or at its pleasure, with or without cause, without notice and without liability therefor on the part of the company to me. * * * If at any time I resign or am dismissed from the assistant managership, the remuneration above provided, which I have been authorized to receive to that date, shall be in full payment and satisfaction of all of my services to the company and of my compensation under this agreement and of all claims upon the company. Any indebtedness that may now or hereafter be due from me, as shown by the books of the company, shall be a lien upon my salary and any other compensation to which I may be entitled, according to the practice of the company, and shall be deducted from such salary and other compensation according to the pleasure of the company."

The company's Manual of Instructions for managers and assistant managers, governing the plaintiff in his work, in force during the existence of the contract, provided:

"First year and renewal commissions are payable only upon collection of the premiums and remittance to the company's Home Office, in the same manner as the premiums are paid-that is, annually, semi-annually or quarterly; and in accordance with the percentages specified on the authorized and printed commission schedule displayed in the District Office."

John M. O'Keefe was the company's district manager, and the plaintiff worked under his supervision. The plaintiff as such assistant manager was required to make a weekly report to the head office at San Francisco, Cal., of all collections made during the week in the "industrial department" and a weekly report of all collections in the "ordinary department" to the district manager's office in Great Falls. The assistant manager's weekly reports of premiums collected in the "ordinary department" were made to the district manager's office on Thursday of each week, showing all collections made in that department during the preceding week, and such reports should specify the particular policies, the names of the holders, and the amounts collected. It was required, also, that they should show the policies on which the premiums had not been paid, and that the official receipts therefor be returned to the district manager at Great Falls. In August, 1925, Mr. O'Keefe, district manager, became uneasy because of the report made to him by the plaintiff for the month of July, 1925, resulting in Mr. O'Keefe's coming to Helena to confer with the plaintiff and make an examination of the plaintiff's office, books, and records.

Many lapses of policies and arrears in the payment of premiums not reported were found by O'Keefe; and later, upon an audit of the books, collections were found to have been made which were not accounted for. The plaintiff remained in the Helena office during the months of August, September, and October and assisted with the audit of his books. As to several items of money collected he agreed they had been collected, though not entered in the books or reported to the company. He left the Helena office and the company's employment on November 9,...