Employers' Liab. Assur. Corp. Ltd. v. A.M. Trucking

• Decision Date: 02 December 1941
• Docket Number: No. 25618.,25618.
• Citation: 156 S.W.2d 8
• Parties: THE EMPLOYERS' LIABILITY ASSURANCE CORPORATION, LTD., OF LONDON, ENGLAND, (PLAINTIFF), APPELLANT, v. ARTHUR MORGAN TRUCKING COMPANY, A CORPORATION, (DEFENDANT), RESPONDENT.
• Court: Missouri Court of Appeals

156 S.W.2d 8

THE EMPLOYERS' LIABILITY ASSURANCE CORPORATION, LTD., OF LONDON, ENGLAND, (PLAINTIFF), APPELLANT, v. ARTHUR MORGAN TRUCKING COMPANY, A CORPORATION, (DEFENDANT), RESPONDENT.

No. 25618.

St. Louis Court of Appeals, Missouri.

Opinion filed December 2, 1941.

Motion for Rehearing Overruled December 16, 1941.

Writ of Certiorari Denied March 10, 1942.

Appeal from Circuit Court of City of St. Louis. — Hon. Wm. B. Flynn, Judge.

REVERSED AND REMANDED (with directions).

Moser, Marsalek & Dearing and J.C. Jaeckel for appellant.

(1) Sol Abrahams & Son Const. Co. v. Osterholm (Mo. App.), 136 S.W. (2d) 86; General Accident Fire & Life Ins. Co. v. Owen Building Co., 195 Mo. App. 371, 192 S.W. 145. (2) (a) Cowell v. Employers' Indemnity Corp. (Mo.), 34 S.W. (2d) 705; Teich v. Globe Indemnity Co. (Mo. App.), 25 S.W. (2d) 554; Liggett v. Levy et al., 233 Mo. 590, 136 S.W. 299; Roach-Manigan Paving Co. v. Southwestern Surety Ins. Co. et al. (Mo.), 238 S.W. 119; General Accident Fire & Life Ins. Co. v. Owen Bldg. Co. (Mo. App.), 192 S.W. 145; Johnson v. Schuchardt, 333 Mo. 781, 63 S.W. (2d) 17; Ocean Accident & Guarantee Corp. v. Missouri Engr. & Cont. Co. (Mo. App.), 63 S.W. (2d) 196; Hanke v. City of St. Louis (Mo.), 272 S.W. 933; Indiahoma Refining Co. v. National Fire Ins. Co. (Mo. App.), 242 S.W. 710 (b) Hanke v. City of St. Louis (Mo.), 272 S.W. 933; McCloskey v. The Pulitzer Pub. Co., 107 Mo. App. 260, 80 S.W. 723; Indiahoma Refining Co. v. National Fire Ins. Co., etc. (Mo. App.), 242 S.W. 710; Teich v. Globe Indemnity Co. (Mo. App.), 25 S.W. (2d) 554; General Accident Fire & Life Ins. Co. v. Owen Bldg. Co. (Mo. App.), 192 S.W. 145; Johnson v. Schuchardt, 333 Mo. 781, 63 S.W. (2d) 17; Ocean Accident & Guarantee Corp. v. Missouri Engr. & Cont. Co. (Mo. App.), 63 S.W. (2d) 196; Knaup v. Western Coal & Mining Co. (Mo.), 114 S.W. (2d) 969. (3) Dorroh v. Wall (Mo. App.), 297 S.W. 705; Indiahoma Refining Co. v. National Fire Ins. Co. etc. (Mo. App.), 242 S.W. 710; Hanke v. City of St. Louis (Mo.), 272 S.W. 933; McCloskey v. The Pulitzer Publishing Co., 107 Mo. App. 260, 80 S.W. 723. (4) (a) Barr v. Nafziger Baking Co., 328 Mo. 423, 41 S.W. (2d) 559; Taylor v. Kansas City, 342 Mo. 109, 112 S.W. (2d) 562; Jennings v. National Life & Accident Ins. Co., 226 Mo. App. 777, 46 S.W. (2d) 226; Hengelsberg v. Cushing (Mo. App.), 51 S.W. (2d) 187. (b) Lithegner v. City of St. Louis (Mo. App.), 125 S.W. (2d) 925; Zumwalt v. Chicago & A.R. Co. (Mo.), 266 S.W. 717; Rice v. Jefferson City Bridge & Tr. Co. (Mo.), 216 S.W. 746; Barr v. City of Kansas, 105 Mo. 550, 16 S.W. 483. (c) Crews v. Wilson, 312 Mo. 643, 281 S.W. 44; Crone v. United Railways Co. of St. Louis (Mo.), 236 S.W. 654; Elliott v. Richardson (Mo. App.), 28 S.W. (2d) 408. (5) Sec. 3717, R.S. Mo. 1939; 71 C.J. 911, par. 645; Employers' Liability Assurance Corp., Ltd., of London v. Success-Uncle Sam Cone Co., Inc., 208 N.Y.S. 510; Scranton Leasing Co. v. Industrial Commission of Utah, 170 Pac. 976; Employers' Liability Assurance Corp., Ltd., v. A.A. Electric Co., 305 Ill. App. 209, 27 N.E. (2d) 321. (6) Sec. 1229, R.S. Mo. 1939; Central States Life Insurance Co. v. Bloom et al. (Mo.), 137 S.W. (2d) 517; Mellon v. Stockton & Lampkin (Mo.), 30 S.W. (2d) 974.

Kramer & Chused and Simon Reznikoff for respondent.

(1) Employers Liability Assurance Corp. of London, Ltd. v. Success-Uncle Sam Cone Co., 208 N.Y.S. 510; Employers Liability Assurance Corp. of London, Ltd. v. A.A. Electric Co., 305 Ill. App. 209, 27 N.E. (2d) 321; 1 Williston on Contracts (Rev. Ed.), 1; R.S. Mo. 1939, secs. 3717, 3720. (2) (a). Remmers v. Remmers, 217 Mo. 541, 117 S.W. 1117; Joerdans v. Schrimpf, 77 Mo. 383; Durette v. Briggs, 47 Mo. 356; Vardeman v. Bruns, 199 S.W. 710; Merchants Nat. Bank v. Brisch, 154 Mo. App. 631, 136 S.W. 28; McElvain v. R. Co., 151 Mo. App. 126, 131 S.W. 736; Phoenix Land Co. v. Seidel, 135 Mo. App. 185, 115 S.W. 1070; 22 C.J. 1147, 1213; 20 Am. Jur. Evidence, secs. 1091, 1954. (b) Testimony as to the prices quoted to defendant by plaintiff's representative, and the present status of accounts on defendant's books are not objectionable as conclusions of law. Pinson v. Jones, 221 S.W. 80; State v. Ritter, 288 Mo. 381, 231 S.W. 606; Jones v. Werthan Bag Co., 254 S.W. 4. (3) Instruction No. 2 neither assumes controversial facts, nor does it improperly comment upon the evidence. State ex rel. Ambrose v. Trimble, 304 Mo. 533, 263 S.W. 840; Stanton v. Jones, 59 S.W. (2d) 653; Ward v. Fessler, 252 S.W. 667; Price v. R.R., 185 Mo. App. 432, 170 S.W. 925; Tyler v. Hall, 106 Mo. 313, 17 S.W. 319, 27 Am. St. Rep. 337; State v. Pyscher, 179 Mo. 159, 77 S.W. 836; Berthold v. Danz, 27 S.W. (2d) 451.

BENNICK, C.

This is an action by plaintiff, The Employers' Liability Assurance Corporation, Ltd., of London, England, to recover additional premiums alleged to be due upon two policies of insurance issued by plaintiff to defendant, Arthur Morgan Trucking Company.

The one of such policies was a workman's compensation and employer's liability policy; the other, a contractor's public liability policy. Each policy covered certain operations of defendant in both Missouri and Illinois.

The case originated in a justice's court in the City of St. Louis upon the filing by plaintiff of a petition in two counts, the first of which related to the workmen's compensation and employer's liability policy, and the second to the contractor's public liability policy. Judgment was prayed in the first count for $623.13 and interest, and in the second count for $23.73 and interest.

During the trial of the case in the circuit court upon the appeal from the justice's court, defendant admitted its indebtedness of the sum prayed for in the second count of the petition, with the result that the court, in the submission of the case, peremptorily instructed the jury to find for plaintiff on the second count of the petition.

The controversy in the case was over the question of the amount due from defendant under the first count of the petition, plaintiff claiming that notwithstanding the lower rate quoted in the policy, it was entitled to recover the whole of the amount prayed for in said count, which represented the amount of the premium upon the workmen's compensation policy computed at the legal rates approved in Missouri and Illinois; while defendant contended that irrespective of what may have been the approved legal rates in the two states in question, it was only obligated to pay a premium computed at the rates originally quoted in the policy issued to it, under which theory it was only indebted to plaintiff in the sum of $5.71 upon the workmen's compensation policy, which sum it expressed itself as being ready and willing to pay.

The issue arising upon the first count of the petition was submitted to the jury, which found for defendant upon the matters in issue, and returned a verdict in plaintiff's favor for only $5.71 with interest, amounting to $8.09. The directed verdict on the second count was in favor of plaintiff for the sum of $23.73 with interest, amounting to $33.54. Judgment was thereupon entered in plaintiff's favor for the aggregate amount of $41.63; and plaintiff, considering itself aggrieved by the alleged inadequacy of its recovery on the first count of the petition, has perfected its appeal to this court in the usual course.

Both policies were issued to become effective on September 23, 1932, with the total premium payable on each policy to be based upon the amount of remuneration earned during the policy period by defendant's employees engaged in the several business operations covered by the respective policies.

In ascertaining the total amount of the premium due upon the workmen's compensation policy, the controversy between the parties was over the question of the proper premium rates to be applied to the wages paid truckmen for services rendered in Missouri and Illinois.

It was undisputed that during the period of the policy, the general truckmen's premium rate approved and issued by the Superintendent of the Insurance Department of the State of Missouri was $5.43 for each $100 of pay roll for truckmen in an insured's employ, which meant that in the case of defendant (an employer engaged in the general hauling business), no insurance carrier was permitted to issue or carry insurance for it at a lower premium rate than that approved and fixed by the general truckmen's classification code, except and unless defendant should qualify for a lower rating by showing a state of circumstances entitling it to a lower classification of risks insured against.

Such circumstances were that where truckmen hauled under contract, whether for one or more individuals or concerns, the pay roll of the employees engaged in hauling under any such contract might be classified and rated at the appropriate classifications and rates for drivers, chauffeurs, and helpers that would be applicable if such employees were engaged directly by the respective individual or concern with which the contract was made, provided that the contract was for a term of not less than one year; that specific trucks and employees were assigned to perform the hauling under the contract, and were used exclusively for that purpose; and that a separate pay roll record was kept for employees engaged in hauling under such contract.

It was plaintiff's theory that the rate applicable to truckmen whose services were performed in Illinois during the period of the policy was $4.77 for each $100 of pay roll. However, the lawfulness of such rate was not shown by evidence as in the case of the Missouri rate, but instead depended for its applicability upon a finding by the jury that such rate was included in the policy or an endorsement thereto at the time the policy was issued. Defendant denied that any such rate had been included or mentioned in the policy or any endorsement thereto at the time of the issuance of the policy; and the...