Milwaukee Mechanics' Ins. Co. v. Warren

Action on Bond of Insurance Agents—Findings against Evidence— New Trial.—In an action by an insurance company on the bond of its agents for insurance moneys collected and not paid over, where the judgment was for the defendants, held, upon review of the evidence, on motion for new trial, that the • findings that the insurance agents had. accounted for and paid over all moneys belonging to the plaintiff, had no substantial support in the evidence, which clearly showed, without conflict, that they were indebted to the plaintiff in a considerable sum for moneys actually received and not accounted for; and the new trial must be granted.

Id..—Mutilation of Books — Reference — Qualified Report — Testimony — Trial without Objection — Objection upon Appeal.— Where the books of the agents were mutilated, rendering an accounting difficult, and the ease was referred and the referee made a qualified report, which was treated as a prima facie showing of indebtedness, and the referee and other witnesses were examined, and cross-examined by defendants' counsel, and the ease was tried without objection on the theory that the report of the referee was properly before the court, and that his written statements and oral testimony were evidence in the case, and defendants having permitted the trial to proceed and the ease to be submitted on this theory, are bound by it, and cannot be permitted to raise for the first time on appeal an objection which could have been obviated if made in the court below.

Id.—Contract with Agents—Charge of Percentage for Return Premiums on Surrendered Policies.—Where, under the contracts with the agents, they were to have thirty-five per cent of the gross premiums received by the company in their territory “after deducting all return premiums, rebates and insurance,” they were properly chargeable in their accounts with all “return premiums” on surrendered policies after they had been credited with thirty-five per cent of the full amount of the premiums on insurance written by them, and these commissions on the “return premiums” are chargeable against the sureties on their bonds as well as against the principals. This contemplates a continuance of the accounts after the termination of the agency for the purpose of charging commissions on return premiums and rebates.

Id. — Deductions eob Beinsubance. — Deductions for reinsurances should only be for those effected during the existence of the agency.

Id.—Accounts with Sub-Agents.—The agents are responsible for the payment of sub-agents, and the commissions of the sub-agent is a matter between the agents and the sub-agents, with which the company had no concern, and this item should not be taken into account at all in the accounts between the company and its agents. But where in closing up business written by the agents, the premiums for which had not been collected prior to the termination of the agency, the company did not collect the full premiums, but so much of them as remained after deducting the commissions of the sub-agents due from the agents, such commissions were properly chargeable to the agents as an item of expense required to be paid by them.