Manning v. Insurance Co.

delivered tbe opinion of tbe court.

The. John Hancock Mutual Life Insurance Company, on tbe second day of December, 1868, employed Manning and one Hall as its general agents for New York and other States, to secure applications for life insurance, and to collect and pay over premiums on insurances effected. It was stipulated that tbe agreement should continue in force three years from Sept. 1,1867, and that it might thereafter be terminated by either party on giving six months’ notice. By the contract, the compensation allowed to Hall and Manning was twenty per cent on the ordinary premiums upon all policies (excepting those paid for by single payments) for the first year, and seven and one half per cent for the second and subsequent years of assurance. An additional allowance was also made for -travelling and incidental expenses. It was further stipulated that these allowances should continue to be paid for twenty-five years from the date of each policy, should any continue so' long in force; and, further, that .the agents should remit monthly all moneys collected by them, and" return all uncollected policies and receipts sent to them for collection by the company. The contract declared that commissions should accrue only as the premiums were paid to the company.

On the 13th of May, 1870, Hall assigned his interest in the contract to Manning, with the approval of the company.

About the 1st of June, 1871, the company discharged Manning from its service, for reasons which the verdict in the case establishes to have been lawful and sufficient, and brought this suit to recover its money in his hands.

Among other defences set up against the claim of the plaintiff, the defendant offered to show that a set-off existed in his favor for commissions collected and received by the plaintiff from May 1, 1871, to Dec. 23, 1871, and interest thereon to the time of the trial. To sustain this (after having made proof of notice to the plaintiff to produce the books and papers necessary to show the amount of renewal premiums received by it from policies obtained through his agency during the period mentioned, and the books and papers not being produced), he gave evidence to prove that on the 2d of June, 1871, there were policies in force upon which the annual premiums would be $87,000, as it appeared in his accounts with his sub-agencies-; that his annual commissions upon the premiums would amount to $8,391.14; and that, computing the amount which would be due to him, accruing between June 2, 1871, when he was dischai’ged, and Dec. 23, 1871, when the suit was commenced, they amounted to about $4,754.97.

But no direct proof whatever was given that any of the policies in force on the 1st of May, 1871, or on the 2d of June, 1871, had been renewed or extended, or that any of the annual premiums becoming payable after those dates had been paid to or received by the plaintiff.

Upon this evidence the Circuit Court instructed the jury, in effect, that if the defendant had been removed from his agency without justifiable cause, they might find from it what amount

In another part of the charge the same instruction was given, though in different order. It was, that if by his own conduct the defendant rendered his removal necessary, before he could recover from the plaintiff his portion of the renewals, it would be incumbent upon him to show, not only how many policies had been taken by his agency, and the premiums due upon them, but' also that the premiums had been paid to the plaintiff. On the other hand, if by its wrongful act of removing him the plaintiff deprived him of the means of collecting the premiums, then when he had shown that renewal premiums to a certain amount were due and payable upon life policies at the time when he was removed, which because of its own act the plaintiff was bound to collect, if collectible, he was entitled to the presumption that they were collected as they became due, and, therefore, the burden would rest upon the company to show that policies had lapsed,-or'that without its fault it had been unable to collect the renewal premiums. To so much of these instructions as ruled in effect that if the defendant was rightfully dismissed from the employment of the plaintiff there was no evidence for the consideration^of the jury as to the amount of the renewals, and, of course, of the amount of commissions thereon, exception was taken, and it is now assigned for error.

We think, however, the defendant has no reason to complain. The charge was, at least, quite as favorable to him as he had any right to ask. By his contract with the plaintiff it was expressly stipulated that the “ commissions should accrue only as the premiums are paid to the company.” It was incumbent upon him, therefore, to prove, not merely that they were due, which might possibly have been paid, but that they had been actually paid', and paid not merely to his sub-agents, but paid to the plaintiff. If they had been thus paid, the plaintiff held the money, to the extent of the commissions, for his use. If they had not been paid to the plaintiff, it had nothing in hand which belonged to him. His set-off was in the nature of an

It is argued, however, that because the plaintiff failed to produce its books and papers necessary to prove the amount ■ of renewal premiums received by it, the defendant was at liberty to prove the amount by what he calls “ secondary evidence ; ” or, in other words, “ by the best evidence the case afforded.” This may be admitted; but the receipt of the renewal premiums by the plaintiff was still a fact to be proved, either by direct or circumstantial evidence.

No direct proof of such receipt was offered, as we have said. None was attempted. The defendant might have resorted to a subpoena duces tecum, or to an order of the court to produce papers and books, or, perhaps, to a bill of discovery. He did neither. He simply proved, as a fact,. that there were life policies in existence, secured through his agency, renewal premiums upon which fell due before the suit was brought. His evidence stopped there, and he now complains that the jury was not allowed to presume from that fact that the renewal premiums had been paid to the plaintiff, and to presume it against a party who was not in the- wrong, a party who had rightfully dismissed him from his agency, and who was under no obligation to collect the premiums at all. But-was that a conclusion which the jury should have been permitted to draw from the fact proved? It is error to submit to a jury to find a fact of which there is no competent evidence. From the fact that a debt existed, it does not follow as a necessary or even reasonable sequence that it has been paid. Nor is there any presumption of its payment upon which a jury can act. Certainly none until after the lapse of twenty years. Much less can such a presumption arise in regard to the payment of renewal premiums upon policies of insurance such premiums not being debts due to the insurers, and not being collectible as debts. -We do not question that a jury may be allowed to presume the existence of a fact in some cases from the exist

If these principles be applied to the present case, the inadmissibility of the presumption which the defendant contends the court should have permitted the jury to draw becomes apparent: That renewal premiums to a certain amount, upon which he was entitled to commission, had been paid to the company, was the ultimate fact which was necessary to be proved. What the evidence did prove was, that there were policies in force on the 2d of June, 1871, the annual premiums upon which were $87,000; that he would be entitled to commissions upon renewals of the policies, if they should be thereafter renewed, and if the renewal premiums should be paid to the company, and that these premiums were to be collected by his sub-agents and paid over by them. These were the primary facts. Every thing more was left to presumption. The jury, therefore, were to presume that the policies did not lapse, and that they were renewed. Built on this presumption was another, namely, that the renewal premiums were paid

What we have said renders it unnecessary to notice at length the several assignments of error. If there was no evidence of the receipt of renewal premiums by the company, what would have been the interest upon them had they been received was quite immaterial. So, also, was it immaterial to show what would have been the probable duration of the policies.

Judgment affirmed.