Martin v. Fraternal Life Ass'n ( 1907 )

Duefie, C.

This action ivas brought by the plaintiff to recover commissions alleged to be due her on a written contract appointing her a deputy supreme senior of the defendant, with power to solicit members and organize local lodges of the association. By the terms of the contract she was to receive as compensation a sum fcqual to 80 per cent, of the first 12 assessments paid by the members whose applications were obtained by her or by such assistance as she might employ. The action was brought in Richardson county for sendees rendered there, and summons was served on Israel L. Beaulieu, an officer of the local lodge located at Palls City, in that county. The defendant appeared specially and filed objections to the jurisdiction of the court in the following words: “Now comes the defendant, by Harry S. Dungan, its attorney, and appearing for the sole and only purpose, objects to the jurisdiction of this court over the subject matter of the action and the person of this defendant.” The court overruled this objection to the jurisdiction, and properly so, for the reason that no evidence, either ora] or by way of affidavits, was offered in support thereof. The defendant thereupon filed answer, admitting the contract of employment set out in the plaintiff’s petition, admitting that plaintiff wrote insurance for the defendant in the towns of Franklin and Bloomington for which she had been overpaid in the sum of $51.70, and denying that she secured any other applications for insurance for the defendant company. It is further alleged that plaintiff left defendant’s employment in July, 1904; that her contract of employment was then terminated, and that she was not entitled to receive any compensation thereafter. The answer further contained the following plea to the jurisdiction of the court: “This defendant further alleges that this action was improperly brought in the county of Richardson, for the reason that the contract sued upon was made in the county of Adams; that the head office of the Fraternal Life Association, defendant herein, is at Hastings, Adams county, Nebraska; that demand was made on the defendant for payment in Adams county. Nebraska, and payment there refused, and that the cause of action of the plaintiff, if any, arose in Adams county, and that said cause of action, or any part thereof, did not arise in Richardson county, Nebraska; therefore, this court has no jurisdiction to try the above cause.” Accepting this plea as raising the question of venue and a claim of immunity from lawful service of summons in Richardson county, our attention has not been called to any evidence in the bill of exceptions, nor have we discovered any testimony given, in support of this plea. Prima facie the court had jurisdiction of the parties, and, until some evidence was introduced by the defendant tending to show its immunity from suit in Richardson county, the court could neither pass upon the question himself nor submit it to the jury as an issue in the case. The jury returned a verdict for the plaintiff in the sum of $425. The court, before pronouncing judgment, required the plaintiff to remit $20 from the amount of the verdict, and entered judgment for the remainder, and from this judgment the defendant has appealed.

Numerous errors are assigned^ but the only ones argued are those relating to the jurisdiction of the court, the giving of certain instructions, and the amount of the judgment, which, it is claimed, is excessive. What we have already said disposes of the question of jurisdiction.

Relating to the instructions given, they were clearly warranted by the evidence, and contained, so far as we can discover, no erroneous principle of law.

One claim urged against the amount of the recovery seems to he based upon the theory that plaintiff was not entitled to 80 per cent, of any of the first 12 premiums paid on policies secured by her, unless paid before she left defendant’s employ. We do not think the contract can be so construed. It was undoubtedly the intention of the parties that plaintiff should receive as compensation 80 per cent, of the first 12 premiums on policies secured by her efforts, regardless of the time of the termination of her services. A general field agent of the defendant spent several weeks in Falls City assisting the plaintiff in organizing a lodge at that place. There Avas some evidence in the record to the effect that plaintiff was to have the assistance of an agent of defendant company in organizing the first three lodges, and there is evidence of defendant’s field agent himself and of statements made by him which was sufficient- to warrant the jury in finding that any services rendered by him in organizing the lodge at Falls City was as her assistant and of which she Avas to have the benefit. This question was fairly submitted to the jury by the instructions of the court, and a finding in her favor cannot be said to be without evidence in its support.

We discover no reversible error in the record, and recommend an affirmance of the judgment.

Epperson and Good, CC., concur..

By the Court: For the reasons stated in the foregoing opinion, the judgment of the district court is

Affirmed.