Fid. & Cas. Co. v. Thames Perry Co.

• Court: Connecticut Supreme Court
• Writing for the Court: THAYER, J.
• Citation: Fid. & Cas. Co. v. Thames Perry Co., 74 A. 780, 82 Conn. 475 (Conn. 1909)
• Decision Date: 17 December 1909
• Parties: FIDELITY & CASUALTY CO. v. THAMES PERRY CO.

74 A. 780

82 Conn. 475

FIDELITY & CASUALTY CO.

v. THAMES PERRY CO.

Supreme Court of Errors of Connecticut.

Dec. 17, 1909.

Appeal from Court of Common Pleas, New London County; Charles B. Waller, Judge.

Action by the Fidelity & Casualty Company against the Thames Ferry Company to recover insurance premiums. From a judgment for defendant, plaintiff appeals. Error found, and new trial granted.

Hadlai A. Hull and Frank L. McGuire, for appellant.

Donald G. Perkins, for appellee.

THAYER, J. It appears from the admitted facts in the pleadings that the plaintiff by its policies of Insurance or contracts of indemnity undertook to insure the defendant, whose business was that of conducting a public ferry across the Thames river at New London, against liability to its passengers for accidental injuries, fatal or otherwise, sustained by them while on or about the ferry boats or in the ferry houses owned or occupied by the defendant. There were three policies, each for the term of one year, covering three successive years beginning December 1, 1900. They were alike in terms except as to dates, and, in addition to the indemnity against liability to passengers, insured the defendant against liability for injuries to its employes. The latter indemnity is upon a separate and distinct consideration, and that part of the contract is not in question in the case. We speak of the policies and premiurns therefore, only as related to the passenger indemnity. The policies are made a part of the complaint. Each contains the following clause relating to the premiums to be paid for passenger indemnity: "This premium is based upon the traffic earnings during the period of this policy. This amount is estimated at $9,000 and the premium rate is $2 for each $100 of traffic earnings. If the traffic earnings actually exceed the sum stated above the assured shall pay the additional premium earned; if less than the sum stated the company shall return to the assured the unearned premium pro rata." The defendant upon the delivery of each policy paid the plaintiff $180, the amount of the premium based upon the estimated earnings, and, upon the expiration of the last of the three policies, paid the additional sum of $87.00 on the premium on that policy.

The defendant admitted upon the trial that the plaintiff had performed all the terms and conditions of the policies which were to be performed by it, and, after this admission, the only issue between the parties upon the pleadings was whether the traffic earnings exceeded the estimated amount of $9,000, the complaint alleging that they did, and the answer denying it. The plaintiff proved and the court has found that the defendant's entire traffic earnings in each year covered by the policies was largely in excess of $9,000; but the defendant claimed, and...