Cheek v. National Life Insurance Co. of the United States , 200 Mo. App. 533 ( 1919 )

REYNOLDS, P. J.

— Plaintiff commenced his action before a justice of the peace to recover $125 for services alleged to have been rendered by him in investigating, inspecting and settling claims against the National Life Insurance Company of the United States of America, the employment, as it is averred, coming through one O. P. Kirkwood, general agent for the company at St. Louis. From a judgment in favor of plaintiff before the justice, defendant appealed to the circuit court, where on a trial before the court and a jury a verdict was returned in favor of plaintiff for $125, judgment following', from which the defendant, the insurance company, has duly appealed.

By the testimony it appears that the plaintiff had entered into a written contract with the defendant insurance company to solicit insurance and collect premiums for that company and was to and did receive a commission for that work. But it is claimed that on various occasions, at the instance and request of Kirkwood, representing the defendant company, he had made investigations into a number of claims against the company by. persons insured with it, for each of which investigations he charged '$3.50. There was a sharp conflict between the plaintiff and Kirkwood over the question of employment by plaintiff for this work, Mr. Kirkwood claiming that plaintiff undertook it without any promise or understanding that the company would pay him, and for the purpose of learning that branch of the insurance business with a view to taking up that line at- Murphysboro, Illinois. Plaintiff denied this and gave evidence in support of the several items in this account and of the time spent in connection with each. But there is no evidence of the value of the services. All the testimony about that is, that the court said to plaintiff, who was testifying, “Ton put a charge of three dollars and a half-for each of your investigations?” To which plaintiff replied, “Yes, sir-; that would cover all the travels that I had.” This is no testimony as to value. It simply identified the amount. and showed that in each item he included or covered traveling expenses. But that does not even tend to prove value. The services claimed for are' not of such a character, that the jury could determine value without testimony. [Gillen v. Haley, 185 Mo. App. 23, 171 S. W. 638; Van Zandt v. St. Louis Wholesale Grocer Co., 196 Mo. App. 640, 190 S. W. 1050.]

There is no evidence of a promise on the part of Kirkwood, as general agent of the defendant, to pay plaintiff for this extra work. The contract between plaintiff and the company was in evidence and described his duties and compensation. It is claimed by plaintiff that the services for which he sues were outside of his regular employment.

The contract between Kirkwood and the company, in force at the time plaintiff claims to have performed the special services, appoints Kirkwood its general agent for casualty business in the territory comprising the city of St. Louis and vicinity. It defines and limits the powers of the general agent, fixes his compensation and forbids him to contract any outside expenses unless first duly authorized or duly appointed by the company, and that he shall, promptly, on request, investigate, report' upon and render such other services as the company may require to effect the discharge of any claims which may he presented by policy holders in the territory, and attend to all other business that pertains to the business' of the agency, in every transaction comply with and adhere to .all the published instructions, rules and conditions of the company and such special written and printed instructions as may from time to time be communicated to him. It is further provided in this contract that the agent, in this instance Kirkwood, shall receive as full aiid complete compensation for all business secured personally, or otherwise, and for all services performed by or required of him, including all renewal commissions, fees, salaries and expenses, of whatever nature, that may be allowed or paid the agent, and all other representatives of the company working under or through him in the territory, in any capacity whatsoever, the following:

This was substantially the contract between Kirk-wood and the company. While there is no direct-evidence that it was ever brought home to the knowledge of the plaintiff, in fact plaintiff testified la at he never knew the terms of this contract and only knew Mr. Kirkwood as the general agent of the company, and did not know that it was the duty of Kirkwood to perform these services, that is, investigate claims, for he says Kirkwood asked him to do it for him, and he must be charged with knowledge of the law, that Kirk-wood, without authority, could not delegate these duties.

But over and above all this, we find no substantial evidence that either the company defendant or Kirk-wood ever contemplated paying extra for these services, and the conduct of plaintiff refutes the idea that he expected to charge for them. When plaintiff • quit the employment of defendant he made out a due bill, acknowledging that he was indebted to the defendant in about $21. When he rendered his accounts and signed this, he made no claim for extra services. He wrote to the president of the defendant, asking if he could assign or turn over his “debits,’’ that is, commissions due him on business he had written, but said nothing of having any claim against the company for services as here sued for. He brought this action long after he left defendant’s employ, during all of which time he made no claim for these services. Under such a state of facts, plaintiff, a regularly employed servant of defendant, under a stated contract, without more evidence of a contract or understanding that he was to be paid for these extra services, cannot recover. [See Wagner v. Edison Elec. Ill. Co., 177 Mo. 44, 75 S. W. 966; New York Life Ins. Co. v. Goodrich, 74 Mo. App. 355, l. c. 362 et seq.; Carrere v. Dun, 41 N. Y. Supp. 34; Bishop on Contracts, sec. 222; 8 R. C. L. 534.]

In this view of the case, .it is unnecessary to notice the action of the court on instructions, or on the admission or exclusion of testimony.

The judgment of the circuit court must be and it is reversed.

Allen and Becker,. JJ., concur.