63 Ind. App. 250 | Ind. Ct. App. | 1916
Appellant, an Indiana insurance company, brought this action against appellee, who was formerly its agent, to recover on account of certain expense money advanced to appellee and certain insurance premiums alleged to have been collected by him and not accounted for. The cause having been placed at issue was referred to a master commissioner, appointed under the provisions of §1677 Burns 1914, §1397 R. S. 1881 “to.hear the evidence, ascertain the facts and report his findings.” The court adopted the report as made, except specification No. 8 thereof, and on the report as adopted found for'appellant in the sum of $69.03, with interest in the sum of $12.42 and rendered judgment for $81.45, the aggregate. Appellant presents, among other questions, that the amount of the recovery is too small.
Specification No. 8 of the report, rejected by the court as aforesaid, was to the effect that a named sum was due appellant in cash, if the court should place a certain construction on the contract of employment executed by the parties February 8, 1910. A proper construction of the contract determines the entire controversy. It is made a part of the master’s report as adopted by the court.
The material part of the report of the master as adopted by the court is to the following effect: ,Appellee’s services as agent commenced February 8, 1910, and terminated in April, 1911, the cause and circumstances of the termination not being reported. Appellant advanced to appellee sums totalling $423. Facts are reported rendering appellee liable for $8.61 on account of policies cancelled and premiums returned. Appellee collected and paid to appellant on applications written by him premiums amounting to $1,241. His commission on such premiums amounted to $291.78, which commissions he did not reserve but paid to appellant. He wrote other applications on which premiums subject to commission amounted to $215.07. His commission thereon amounted to $70.80. The premiums last named, however, including the commissions thereon, have not been paid to either appellant or appellee, but are due from applicants and unpaid. Respecting the commissions last named, the report of the master is that they are commissions “due or allowed to defendant from plaintiff.”
Specification No. 9 of the report is in substance that if the contract should be construed that, by the terms thereof, appellee is not chargeable with uncollected premiums but that such premiums are the property of appellant, then the balance due appellant is $69.03. Specification No. 8 rejected by the court as aforesaid is, in substance, that if
It will be observed that if appellee be charged with the $423 advanced to him, and with the $8.61 due from him on account of premiums returned, and if he be credited with commissions in the sum of $291.78 and also $70.80, the balance due from him is the amount of the judgment exclusive of interest. It is, therefore, apparent that the court construed the contract as suggested by specification No. 9 of the report.
Appellant contends that appellee should be charged also with such uncollected premiums as suggested by specification No. 8, and that as a consequence there is due from him $284.10, exclusive of interest; and that, if he should not be charged with such premiums, he should not be credited with commission thereon, and that on such hypothesis .there is due from him $139.83, exclusive of interest.
Two questions then are presented: first, Should appellee .be charged with such uncollected premium? and, secondly, if not, Should he be credited with $70.80 commission thereon ?
Note.—Reported, in 114 N. E. 415. Insurance, liability of agent to company for failure to collect premiums, Ann. Cas. 1916D 651. See under (3) 2 Cyc 134; 2 C. J. 1154; 29 Cyc 1502; (4) 3 Cyc 309.