Wood v. Great American Ins. Co.

• Decision Date: 08 December 1925
• Docket Number: No. 19179.,19179.
• Citation: 279 S.W. 205
• Parties: WOOD v. GREAT AMERICAN INS. CO.
• Court: Missouri Court of Appeals

279 S.W. 205

WOOD v. GREAT AMERICAN INS. CO.

No. 19179.

St. Louis Court of Appeals. Missouri.

December 8, 1925.

Appeal from Circuit Court, Pike County; Edgar B. Woolfolk, Judge.

"Not to be, officially published."

Action by C. C. Wood against the Great American Insurance Company and another. Judgment for plaintiff, and defendants appeal. Reversed and remanded.

Leahy, Saunders & Walther, of St. Louis, Ras Pearson and A. J. Murphy, Jr., both of Louisiana, Mo., and A. L. Anderson, of St. Louis, for appellants.

Wm. F. Goodman and May & May, all of Louisiana, Mo., for respondent.

BENNICK, C.

This is an action for damages, instituted by plaintiff on June 3, 1924, against the Great American Insurance Company and Frank L. Leach, its state agent, as defendants, based upon the taking and use by Leach' of an insurance register alleged to have been the property of plaintiff. The verdict of the jury was for plaintiff in the sum of $1 and judgment entered thereon, from which defendants have appealed.

The petition alleged that on or about the 8th day of May,"1924, plaintiff was the owner of, and entitled to the immediate possession of, a certain expiration register containing information relative to insurance policies issued through defendant's local agency at Louisiana, Mo.; that on said date defendants, by and through defendant Leach, the state agent, wrongfully and maliciously obtained possession of said expiration register, carried the same away, deprived plaintiff of its use, and appropriated the information therein contained to their own use; that by reason of such acts plaintiff was deprived of the use of said register, and the valuable contents of same were exposed to rival agencies, and by reason thereof plaintiff was greatly humiliated and discredited with the clientele contained in the register and others in plaintiff's territory who would otherwise have done business with plaintiff. There was a prayer for damages in the sum of $2,000 and costs. The answers of both defendants were general denials.

The evidence, viewed in the light most favorable to plaintiff, disclosed that defendant the Great American Insurance Company maintained a local agency at Louisiana, Mo. Mr. James E. Griffith had originally been defendant's local agent in that city, but on November 11, 1922, his agency had been sold and transferred to Mr. H. W. Pitzer. Codefendant, Frank L. Leach, was and had been state agent since July, 1915. His duties were to secure the appointment of local agents, supervise their business, inspect their risks, assist them in making up their monthly accounts and collect money that was past due. In case of a sale of an agency, the transfer could be made only by him. If no transfer was made, it was part of his duty to take up the supplies of the local agent.

When the agency was first established in Louisiana, defendant Leach ordered an expiration register from the Rochester department of the Great American Insurance Company for the use of the local agent in recording data with reference to policies issued by said company. In compliance with this request, a register was purchased and supplied to the agent by the company. When Pitzer bought out Griffith's agency, defendant Leach made the transfer, and all papers, including the expiration register, were turned over to Pitzer by Griffith.

On May 1, 1924, Pitzer sold his agency, including all expirations, to plaintiff. There was evidence that in making the contract of sale, it was contemplated by the parties thereto that the expiration register should go to plaintiff. All the papers, including the register, however, were retained by Pitzer until the transfer of the agency should be made by the state agent. On May 8, 1924, defendant Leach came to Louisiana for that purpose, and conferred with Pitzer and plaintiff relative thereto in the former's office.

It was disclosed that there were two classes of insurance companies, union and bureau companies; the Great American being a union company. By reason of the difference in the commissions paid to the agents, the Great American Company had determined that it would not go into any agency where the agent also represented bureau companies, and, inasmuch as plaintiff was intending to represent four such companies, Leach informed him that he would be unable to transfer defendant's agency to him. A controversy thereupon arose over the question of the ownership of the expiration register; plaintiff contending that he acquired it in the purchase of Pitzer's agency, and defendant Leach claiming that it was the property of the Great American Insurance Company. After some discussion, Leach picked up the expiration register and left Pitzer's office, taking the register with him to the home of the former agent, Griffith:

The same afternoon Pitzer as plaintiff filed a replevin suit in the justice's court, naming Leach as defendant, and about 3 o'clock p. m. went in company with the constable to Griffith's home, where the summons was served on Leach. While the constable was reading the summons, Pitzer noticed the expiration register lying on a bed and took possession of it. Mr. Leach then said that he could have the book; that they did not want it; that it was his anyway. Pitzer then returned to the office of the justice of the peace and turned the register over to plaintiff.

On May 14, 1924, defendant Leach wrote plaintiff, advising him in part as follows:

"I have written to Mr. Pitzer, asking that he also advise you along these lines, and I further suggested that as I wish harmony and no controversy over the company register, that you simply take that also, and the expiration lists, and I shall be pleased to have you suggest to him that, in view of the circumstances of your unquestioned ownership of the business, that he promptly dismiss any replevin action contemplated."

On the same day Leach wrote Pitzer to the following effect:

"There is no question of your entire ownership of your expirations and business, and you are within your rights to make sale of your business to whom you please, and you are now in possession of both the expiration lists, as well as the company register, and I may say that you are welcome to them. * * * do not desire any contest over the matter of the company register, and shall be pleased to have you turn it over to Mr. Wood, as he may wish to use it for conducting the business until it has run out. * * * As you have the entire expiration lists and also the register without any further controversy, I shall be grateful...