Aetna Life Ins. Co. v. Kansas City Electric Light Co.

• Decision Date: 07 December 1914
• Citation: 171 S.W. 580,184 Mo.App. 718
• Parties: AETNA LIFE INS. CO., Respondent, v. KANSAS CITY ELECTRIC LIGHT CO., a Corporation, CONSOLIDATED ELECTRIC LIGHT AND POWER CO., a Corporation, UNITED ELECTRIC LIGHT CO., a Corporation, STANDARD ELECTRIC LIGHT COMPANY, of Argentine, Kansas, a Corporation, KANSAS RAILWAY & LIGHT CO., a Corporation, Appellants
• Court: Kansas Court of Appeals

171 S.W. 580

184 Mo.App. 718

AETNA LIFE INS. CO., Respondent, v. KANSAS CITY ELECTRIC LIGHT CO., a Corporation, CONSOLIDATED ELECTRIC LIGHT AND POWER CO., a Corporation, UNITED ELECTRIC LIGHT CO., a Corporation, STANDARD ELECTRIC LIGHT COMPANY, of Argentine, Kansas, a Corporation, KANSAS RAILWAY & LIGHT CO., a Corporation, Appellants

Court of Appeals of Missouri, Kansas City

December 7, 1914

Appeal from Jackson Circuit Court.--Hon. Jos. A. Guthrie, Judge.

Judgment affirmed.

John H Lucas for appellants.

(1) The court erred in applying cancellation clause "K" in rendering judgment herein. The companies going out of business were entitled to cancel the policy without the application of "customary short rates," and instruction number 1 should have been given. LaForce v Insurance Co., 43 Mo.App. 530; Mathews v Woodmen, 236 Mo. 342-434. (2) The court erred in allowing interest. There was no sufficient proof of demand. McDonald v. Loewen, 145 Mo.App. 59.

C. A. Lawler and C. S. Palmer for respondent.

(1) The fact of its own existence and occupation being peculiarly within the knowledge of each of the appellants, such a fact, as expiring charter or retiring from business, if it existed should have been pleaded and proved at the trial. Kitchen v. Railroad, 59 Mo. 514; State ex rel. v. Schar, 50 Mo. 393; State v. Schatt, 128 Mo.App. 622. (2) No such question was raised in the trial court, and it will not be considered here. Sec. 2081, R. S. 1909.

OPINION

TRIMBLE, J.

Plaintiff issued to the defendants a policy of indemnity insurance which covered a term of three years. At the expiration of twenty-seven and one-half months the policy was canceled by the assured, which right was accorded defendants by the policy. Plaintiff claimed a balance due on the premium earned during the time the policy continued in force, and brought this suit to recover $ 1843.70 as such balance.

The answer admitted the issuance of the policy to the defendants, although the name of one of the defendants does not appear in the policy as shown in the record. The answer further set up that under a special agreement made at the time the policy was issued and accepted, the premium to be paid in case of cancellation was that actually earned at the time it was canceled; and that when the policy was canceled, defendants paid the premium due for the time said policy was actually in force. This agreement was embodied in a "Special Cancellation Privilege" endorsed upon the policy as follows:

"It is hereby understood and agreed that if, upon the expiration of the first policy year, the assured concludes not to carry public liability insurance, this policy may be cancelled on the request of the assured, and the earned premium shall be computed at the rate of four dollars and eighty-five cents ($ 4.85), for each one hundred dollars ($ 100) of wages expended during the period insurance hereunder has been in force. Nothing herein contained shall be held to affect or modify any provision or condition of the policy, other than as above stated."

Plaintiff claims that the premium earned is not governed by the above agreement, but is governed by paragraph "K" of the policy, which is as follows:

"Cancellation. K. This policy may be cancelled at any time by either of the parties hereto upon written notice to the other party stating when thereafter cancellation shall be effective; the date of cancellation shall then be the end of the policy period, and the earned premium shall be computed and adjusted as provided in condition J hereof. If, however, such cancellation is at the request of the assured and he is not retiring from the business herein described, the compensation for the full original policy period shall be computed upon the basis of the compensation to date of cancellation, and the earned premium calculated at the customary short rates in accordance with the table printed hereon. In any case, where cancellation is at the request of the assured, the minimum earned premium stated in condition J shall be retained by the company. Notice of cancellation mailed to the address of the assured herein given shall be a sufficient notice, and the check of the company similarly mailed a sufficient tender of any unearned premium."

The court held that under the facts of the cancellation disclosed by the evidence, the premium earned was to be determined by paragraph "K," and rendered judgment for the $ 1843.70 sued for with interest from date of suit.

The policy was issued to the various named companies all of whom were collectively referred to therein as "the assured." One hundred dollars was paid on the delivery of the policy as an estimated and minimum premium. The full premium for the three years was to be $ 4.60 for each $ 100 of "the entire compensation, whether salaries, wages, piecework, over time or allowances, earned by all employees of the assured not herein specifically excluded, engaged in the operation of the business herein stated during the period of this policy." According to clause "K" of the policy the compensation for the original policy period should be computed upon the basis of the compensation to date of cancellation, "and the earned premium calculated at the customary short rates in accordance with the table herein."

The total expenditure for wages earned for the twenty-seven and one-half months was $ 318,557.77 and on the basis of this actual expenditure for that time, the expenditure for the three years would be $ 417,021.05, and the premium on that would be $ 19,182.97 at $ 4.60 per $ 100. According to "short rate table" the rate, when the policy was cancelled at twenty-seven and one-half months, would be eighty-six per cent of $ 19,182.97 which is $ 16,497.35. The assured...