Cain v. Robinson Lumber Co.
| Decision Date | 12 November 1956 |
| Docket Number | No. 44829,44829 |
| Citation | 295 S.W.2d 388,365 Mo. 1238 |
| Parties | Lendell CAIN, Employee, Respondent, v. ROBINSON LUMBER COMPANY, Employer, Highway Casualty Company, Alleged Insurer, Appellant. |
| Court | Missouri Supreme Court |
Luke, Cunliff & Wilson, St. Louis, for appellant Highway Casualty Co., Dearing & Matthes, Hillsboro, of counsel.
Samuel Richeson, Hillsboro, Edgar & Edgar, Ironton, for employer.
This workmen's compensation case was consolidated for the purposes of argument with Harris v. Pine Cleaners, Mo., 296 S.W.2d 27. Here the Instrial Commission made an award in favor of the employee Cain and against appellants O. A. Robinson and R. B. Robinson, d/b/a Robinson Lumber Company as employers and Highway Casualty Company as insurer. The insured claimed that the policy covering the liability of the employers had been cancelled prior to the accidental injury. The Commission found to the contrary. The Circuit Court affirmed, and the employer and insurer appealed to the St. Louis Court of Appeals where the judgment of the Circuit Court affirming the award was reversed and remanded with directions. See 273 S.W.2d 741.
The opinion in the Harris case on the present submission settles the jurisdictional question (which prompted transfer of the case to this court), and sustains the holding of the St. Louis Court of Appeals that the Commission had the power and authority to determine whether or not the policy had been cancelled; but in view of the employers' supplemental brief in this court, which more fully develops the question on which the opinion of the Court of Appeals turned, we are constrained to disagree with the action of the Court of Appeals in upsetting the finding of the Commission that the policy had not been cancelled.
The policy was issued as of September 13, 1951, for a period of one year. It provided that the premiums were based on the entire remuneration paid to the employees of the insured. The amount of the premium was to be paid in quarterly installments, and was subject to adjustment to be made quarterly. The original policy stipulated that it was subject to the following conditions, among others:
Appended to the policy was a 'Periodical Premium Adjustment Endorsement,' reading as follows:
'If the Assured shall fail to make such statement of wages expended or pay such earned premiums as provided in the foregoing paragraphs such failure entitles the Company, at its option, and upon proper written notice to the Assured, to cancel the policy.
'Nothing herein contained shall be held to vary, waive, alter or extend any of the Declarations, Schedule of Coverages, Insuring Agreements, Exclusions and Conditions of the policy mentioned in this endorsement, other than as above stated.' (Emphasis ours.)...
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