Reliance National Life Insurance Company v. Caine

439 P.2d 283, 20 Utah 2d 427, 1968 Utah LEXIS 736

• Court: Utah Supreme Court
• Decided: March 28, 1968
• Docket: 10940
• Status: Published

Opinions

TUCKETT, Justice.

This action was commenced by the plaintiff, herein referred to as Reliance, on October 13, 1956. Reliance seeks to recover from the defendant money advanced to the defendant and for insurance premiums collected by the defendant and not paid over to Reliance. The defendant, by way of a counterclaim, prays for an accounting between himself and Reliance and for a judgment in his favor if the accounting shows he is entitled thereto.

On February 1, 1956, Reliance and Caine entered into an employment contract whereby Caine was employed as agency supervisor for Reliance. The agreement continued in effect until July or August of 1956, at which time a dispute arose between the parties which resulted in the resignation of Caine on October 20, 1956. At the time Caine left Reliance, or shortly thereafter, seven agents of Reliance also left the Insurance Company. Some of the agents later joined Caine in another insurance venture in the state of Nevada.

The employment contract entered into between Reliance and Caine contained a forfeiture provision which provided in part as follows:

Should the supervisor at any time endeavor to induce representatives of the company to discontinue their contract, or its policyholders to relinquish their policies * * * the agency supervisor shall forfeit any and all commission interest that he might otherwise have acquired under any and all contracts with the company.

During the year 1960, the case was tried by the court without a jury at various times and on a piecemeal basis. On May 3, 1967, the court entered its findings and judgment from which Caine appeals to this court. The court found that Reliance was entitled to judgment in the sum of $6,762.73. The court further found that Caine endeavored to induce several agents of Reliance to discontinue their employment, and that by reason of the forfeiture provision of the employment contract, he had forfeited all sums due or to become due thereunder.

The defendant here contends that the findings and judgment of the court are not supported by the evidence at the trial. It should be observed that counsel who represented the defendant during the trial withdrew thereafter, and that the defendant has employed other counsel to represent him on appeal.

There is only a partial record of the testimony before this court. The record contains the transcript of the testimony of the witnesses who were sworn and testified on August 1, 1960. It is conceded that the testimony taken on that day does not support the court’s findings and judgment. It appears that the case was heard by the court on various days, and that various reporters took the testimony of the witnesses, and that it cannot now be determined from the court’s records what reporters were in attendance on the court during the hearings other than the one on August 1, 1960. It appears now that it is impossible to secure a record of the testimony on the other days of the trial.

After the appeal to this court had been docketed counsel for Reliance discovered that the record was not complete. He then made application to the trial court for an order to supplement the record, and in support of the motion he filed with the court an affidavit of Jack Fletcher to the effect that during the year 1960, he was employed by Reliance as treasurer and keeper of its financial records; that during the summer of 1960 he had been a witness for Reliance in the present litigation. The affidavit further stated that he had before him during his testimony the records of the company, and that the records showed that Caine owed between six thousand and seven thousand dollars to the plaintiff. The motion was also supported by an affidavit of counsel for the plaintiff to the effect that during the trial Jack Fletcher testified that the records of Reliance disclosed that the defendant was indebted to the plaintiff in the sum of $6,762.73. At a hearing upon the motion on January 11, 1968, the court certified that during the trial of the cause in 1960 the said Jack Fletcher had testified as above set forth.

As a part of the record before this court there appears a stipulation entered into by the parties dated November 23, 1960, wherein the parties agreed that before an accounting could be made from the books of the company determining whether or not a balance existed in favor of Reliance or the defendant, it was first necessary that the court determine certain matters of law relating to the forfeiture provision of the contract. A part of that stipulation is as follows:

That before this matter can be properly and fully adjudicated the court must decide whether the evidence is such as to require a forfeiture as described in Paragraph 10 of the agency’s supervisor’s contract.

It would appear that Cainefs contention was that Reliance had breached the contract and that by reason of the breach Reliance was barred from declaring a forfeiture. Whatever evidence was before the court respecting these matters is no longer available.

It will be noted that the efforts of court and counsel to supply by affidavits and a certificate a record of testimony which supports the court’s findings and judgment only go to one issue of fact. It appears that there are other issues upon which the court undoubtedly took testimony and upon which findings should have been made but that testimony is not here for review.

We have no rule or statute to guide us in this situation. An important fact in this case is that the long delay in submitting findings and judgment to the court by the prevailing party contributed to the impossibility of obtaining a transcript of the testimony at the time of the appeal. We cannot review the evidence to determine whether it supports the court’s finding and we are of the opinion that the deficiency can only be corrected by á trial de novo.¹

The judgment of the court below is reversed and the matter is remanded for a new trial. No costs awarded.

CALLISTER and HENRIOD, JJ., concur.

1 . J. W. Ripey & Son v. Art Wall Paper Mill, 27 Okl. 600, 112 P. 1119; Woods v. Bottmos (Mo.App.) 206 S.W. 410; Shafer v. King, 82 Colo. 258, 259 P. 1042. See also 13 A.L.R. 111, 107 A.L.R. 606.