Wilson v. Supreme Liberty Life Ins. Co., 30650

• Decision Date: 21 February 1961
• Docket Number: No. 30650,30650
• Citation: 343 S.W.2d 649
• Parties: C. C. WILSON, Plaintiff-Respondent, v. SUPREME LIBERTY LIFE INSURANCE COMPANY, a Corporation, Defendant-Appellant.
• Court: Missouri Court of Appeals

Page 649

343 S.W.2d 649

C. C. WILSON, Plaintiff-Respondent, v. SUPREME LIBERTY LIFE INSURANCE COMPANY, a Corporation,

Defendant-Appellant.

No. 30650.

St. Louis Court of Appeals, Missouri.

Feb. 21, 1961.

Motion to Modify Opinion or Transfer to Supreme Court Denied

March 24, 1961.

S. R. Redmond, St. Louis, for defendant-appellant.

Frank S. Bledsoe, St. Louis, for plaintiff-respondent.

DOERNER, Commissioner.

This is an action for money had and received, which originated in the Magistrate Court of the City of St. Louis. From an adverse judgment defendant appealed to the Circuit Court, where a verdict and judgment was rendered against it in the sum of $931.19, together with interest thereon of $528, or a total of $1,459.19, from which it has again appealed.

The defendant is a foreign life insurance company whose principal office is in Chicago, and is licensed to and does operate in this state. Plaintiff is a former employee, who served as its agent in one of its debits, from about January 9, 1931 to June 30, 1956, except for the period from November 1948 until June 1950, during which time he was manager of the company's St. Louis office. It appears that because defendant's agents collected money for it in their debits, but could not obtain fidelity bonds, it was the established practice to deduct sums from time to time, out of the compensation due an agent, to insure the faithful performance of his duties. The accumulated amount thus retained was called the agent's 'bond reserve.' Following plaintiff's retirement from the company, on June 30, 1956, a dispute arose as to the amount in plaintiff's bond reserve. He maintained that the sum due him was $931.19, and that under the terms of his employment he was entitled to interest thereon at the rate of 6%. Defendant offered to pay plaintiff $451.19, which it contended was all that was due him, and denied that he was entitled to any interest.

Viewing the evidence in the light most favorable to the plaintiff, as we must, it appears from the evidence that Boyd Holmes, who was the manager of defendant's St. Louis office in 1931, sent for plaintiff and offered plaintiff employment as an agent in one of the defendant's debits. Holmes informed plaintiff that because plaintiff would be handling the company's money, and couldn't be bonded, that the company would take a sum out of plaintiff's earnings each week, to be retained as a bond reserve. Plaintiff inquired of Holmes how long such a practice would be continued, and was told by Holmes that it would be followed as long as plaintiff worked for the company. Plaintiff then pointed out that a man might work for defendant as long as 15 or 20 years, and asked if the company paid interest on the money. Holmes replied that it did so, at the rate of 6%. Thereupon plaintiff accepted the tendered employment and began working for the company about January 9, 1931.

Defendant objected to the plaintiff's testimony concerning Holmes' statement that the defendant would pay interest, on the grounds that Holmes had no authority to make such a promise. The admission of such evidence forms the basis of defendant's first assignment of error. None of the cases cited by defendant in support of its argument is applicable, for the reason that they deal with the authority of an agent (and one with that of a district manager) to bind his principal on a policy of insurance. What we are here concerned with is a contract of employment. Plaintiff's evidence showed that Holmes, as manager, was in charge of the operation of its St. Louis office; that he did, in fact, employ plaintiff as a debit agent, for the purpose of carrying on the business of defendant; that from the manager's weekly reports sent to it, defendant was aware of such employment; and that plaintiff worked for defendant for over 27 years. Defendant's argument seems to be that to sustain his burden of proof plaintiff was required to show that Holmes had express authority from defendant to promise to pay plaintiff interest on his bond reserve. What it overlooks is that where an agent has the power to employ others in the furtherance of the principal's business, it is within the apparent scope of the agent's authority to agree upon reasonable terms of employment, and the principal will be bound thereby. Halliwell v. Oriental Cement & Plaster Co., 170 Mo.App. 582, 157 S.W. 89; Cross v. Atchison, T. & S. F. Ry. Co., 71 Mo.App. 585; 2 C.J.S. Agency Sec. 105. The evidence was therefore admissible to show the terms of plaintiff's employment.

It appears from the evidence of both parties that throughout the course of plaintiff's employment the manager of defendant's office was required to submit to defendant each week, in duplicate, a report, termed the manager's summary, showing, among other information, the amount of compensation earned by each debit agent during that week and the cumulative amount of each agent's bond reserve retained by defendant during all of the agent's prior service. One copy was retained in defendant's Chicago office and the other was returned to the St. Louis office. Prior to the trial plaintiff served defendant with a motion to produce such summaries for the period covering plaintiff's employment. Defendant brought in those from 1952 to 1956, and offered evidence that it did not have the summaries for the prior years because the copies kept in Chicago had been destroyed in a fire, and the duplicates in St. Louis had been lost when that office was moved from one location to another.

During plaintiff's appearance on the stand, and over defendant's objection, plaintiff was permitted to testify to a conversation he had in the Spring of 1944 with the clerk of the St. Louis office who prepared the summaries. The gist of his testimony was that she told him that his accumulated bond reserve, amounting to $480 at that time, had been omitted from that week's summary. Plaintiff also stated that when the amount of his bond reserve again appeared on a subsequent summary a new accumulation, without the $480, was begun anew by defendant. Defendant complains that what the clerk told plaintiff was hearsay, and that the admission of his testimony regarding the same was prejudicial error. Plaintiff does not contend that he saw the records, or that at any point in his testimony he was testifying from his own recollection of what they showed. His position as set forth in his brief is that because the records were not in existence: '* * * Secondary evidence was the only evidence available to the plaintiff * * * She was the agent of the defendant and her statement about the 1944 managers 1001; Bank of Aurora v. Linzee, 166 Mo. It may be conceded that under the circumstances plaintiff was entitled to use secondary evidence to establish the contents of the missing summaries. However, our courts have long recognized the rule of degrees of secondary evidence, and have required that the best of such evidence must be used. Scrivner v. American Car & Foundry Co., 330 Mo. 408, 50 S.W.2d 1001f Bank of Aurora v. Linzee, 166 Mo. 496, 65 S.W. 735; Zimmerman v. T. C. Bottom Produce Co., Mo.App., 192 S.W. 1938. Since all copies of the summaries had been destroyed, the testimony of their contents by the clerk who prepared them or of someone else who was familiar with...