Fid. & Cas. Co. v. Bodwell Granite Co.

• Decision Date: 27 November 1906
• Citation: 66 A. 314,102 Me. 148
• Parties: FIDELITY & CASUALTY CO. v. BODWELL GRANITE CO.
• Court: Maine Supreme Court

66 A. 314

102 Me. 148

FIDELITY & CASUALTY CO.

v. BODWELL GRANITE CO.

Supreme Judicial Court of Maine.

Nov. 27, 1906.

Report from Supreme Judicial Court, Knox County.

Action by the Fidelity & Casualty Company against the Bodwell Granite Company. Case reported. Report discharged, and case dismissed.

Assumpsit upon four separate employers' liability insurance policies, the first policy running from the 19th day of March, 1900, to the 19th day of March 1901; the second from the 19th day of March, 1901, to the 19th day of March, 1902; the third running from the 19th day of March, 1902, to the 19th day of March, 1903; the fourth running from the 19th day of March, 1903, to the 19th day of March, 1904.

The declaration contained eight counts, two upon each of said policies. The two counts founded upon the first policy are as follows:

"In a plea of the case for that the said defendant in consideration of the agreement and contract of the plaintiff to indemnity said defendant for the period of 12 months, beginning the 19th day of March, A. D. 1900, and ending the 19th day of March, 1901, against loss from liability for damages on account of bodily injuries accidentally suffered within said period by any employs or employés of said defendant engaged as cutters and hewers of granite, or as yardmen or helpers at the yards of said company at Vinalhaven, Jonesboro, and Spruce Head, in said state of Maine, said defendant did pay the plaintiff the sum of $20 and did contract and agree, if the compensation actually paid to all employés engaged as aforesaid exceeded the sum of $5,000 it would pay to the plaintiff an additional amount of 40 cents for each $100 in excess of said sum of $5,000 paid as compensation as aforesaid.

"And the plaintiff avers that said defendant paid as compensation as aforesaid a large sum in excess of said $5,000, the exact amount of which is unknown to the plaintiff, but which the plaintiff believes and therefore avers is at least $20,000, and the defendant then and there promised to pay the plaintiff four-tenths of 1 per cent. on the total amount of the sum paid as aforesaid; yet the defendant has not kept its said contract and agreement, but has broken the same.

"Also for that the said defendant in consideration of the agreement and contract of the plaintiff to indemnify said defendant for the period of 12 months, beginning the 19th day of March, A. D. 1900, and ending the 19th day of March, 1901, against loss from liability for damages on account of bodily injuries accidentally suffered within said period by any employé or employés of said defendant engaged as cutters and hewers of granite, or as yardsmen or helpers at the yards of said company at Vinalhaven, Jonesboro, and Spruce Head, in said state of Maine, said defendant did pay the plaintiff the sum of $20, and did contract and agree, if the compensation actually paid to all employés engaged as aforesaid exceeded the sum of $5,000, it would pay to the plaintiff an additional amount of 40 cents for each $100 in excess of said sum of $5,000 paid as compensation as aforesaid; and did further contract and agree that the plaintiff should have the right at all reasonable times to examine the books of said defendant so far as they related to compensation paid all employés at work as aforesaid.

"And the plaintiff avers that said defendant paid as compensation as aforesaid a large sum in excess of said $5,000, the exact amount of which is unknown to the plaintiff, but which the plaintiff believes and therefore avers is at least $20,000, but the defendant has not paid the plaintiff said additional sum, and, although often requested to allow the plaintiff said right and opportunity to examine its books as aforesaid, said defendant has neglected and refused so to do, and hath not kept its said contract and agreement, but hath broken the same."

The other counts were of the same tenor as the foregoing with the necessary changes of dates, etc.

The writ was returnable at the January term, 1905, of the Supreme Judicial Court, Knox county. At the April term of said court the defendant filed as its plea the general issue. After this plea had been filed, the plaintiff made the following motion:

"And now comes the plaintiff in the above-entitled action and says: That issue has been joined therein; that certain written instruments in the possession of the defendant are material to the issue in said action, namely, the books and pay rolls of the defendant showing the amount paid in wages by the defendant to the several classes of employés described in the declaration in said action, and without the information contained in said written instruments the plaintiff is unable to properly prepare this case for hearing, and...