Md. Cas. Co. v. Indus. Comm'n

• Decision Date: 07 November 1928
• Citation: 221 N.W. 747,198 Wis. 202
• Parties: MARYLAND CASUALTY CO. v. INDUSTRIAL COMMISSION ET AL.
• Court: Wisconsin Supreme Court

198 Wis. 202

221 N.W. 747

MARYLAND CASUALTY CO.

v.INDUSTRIAL COMMISSION ET AL.

Supreme Court of Wisconsin.

Nov. 7, 1928.

Appeal from a judgment of the Circuit Court for Dane County; A. G. Zimmerman, Judge.

Action by the Maryland Casualty Company against the Industrial Commission and others to review an award of the Commission in favor of Clara Hoffman and others. From a judgment affirming award, plaintiff appeals. Reversed and remanded, with directions.--[By Editorial Staff.]

Action begun on March 26, 1927; judgment entered February 27, 1928. Workman's compensation. The plaintiff issued a policy of insurance to the defendant George W. Pollock, covering his liability under the Workman's Compensation Act, growing out of operations from 12:01 a. m. June 11, 1925, to 12:01 a. m. June 11, 1926. The defendant Pollock claims that he entered into an agreement with the agent Kizer whereby the policy of insurance was to be renewed for a period of one year from 12:01 a. m. June 11, 1926, to 12:01 a. m. June 11, 1927. On June 28, 1926, an employé of Pollock, one Andrew Hoffman, sustained injuries which are admittedly compensable under the Workman's Compensation Act. There was a report of accident and application for adjustment of the claim; the plaintiff insurance carrier answered alleging no insurance in effect at the time the alleged accident occurred. There was a hearing before the Industrial Commission on November 13, 1926, at which time the insurance carrier objected “to the jurisdiction of the commission in the matter of determination of the question as to whether or not the Maryland Casualty Company was the insurer of George Pollock on June 28, 1926, which is the date on which Andrew Hoffman was killed.” The objection was overruled, and thereupon the parties proceeded to litigate the question as to whether or not there was a policy of insurance in force on the day of the accident. The commission disposed of the issue thus raised and litigated by finding that the plaintiff was on the date of the accident the insurer. Pollock does not claim that he paid to Kizer, the local agent of the plaintiff company, any money. Kizer testified as follows:

“On or about the 11th or 12th day of June, somewhere right there, Mr. Pollock came into my office and some time during the forenoon, I rather think it was the 12th, but it might have been the 11th, George came in and he says something like this: ‘I came in to see about the renewal of compensation insurance,’ and I says, ‘I am renewing it; I have a bill from the company and am taking care of it. I suppose you want it.’ He says, ‘That is what I came to see about,’ and I told him I had a bill from the company and that I would make up a bill of the premium and accrued pay roll premiums which had been charged to me during the current year for his policy. Up to that time I had not been charged with the final pay roll; they come quarterly and I had been charged with the others, so I had been charged with all except the last quarterly payments. With reference to the $75.00 premium to be paid by Mr. Pollock, I told him that I would make up a statement of these premiums and asked him to credit to my account with him. He is a contractor and he does a great deal of work and does work for me and I owed him some money. He shingled my house and there was a balance due on the contract, so on the 14th day of June I did as I told him I would and made up a bill, which I have in my hands, including the premium for June 25th on this compensation policy: ‘premium compensation, $75.00; pay roll accounting, November 25, $59.82; March 26, pay roll accounting, $57.44, and June 26th, premium compensation, $75.00.’ I had two copies of this and mailed him one of them.”

It does not appear that Kizer ever reported to the company that the policy was renewed, remitted the premium, or did anything in the way of securing a renewal of the contract except as stated; nor was any policy or renewal receipt made or delivered at any time.

The Industrial Commission based its conclusion that Pollock was insured by the plaintiff carrier on the following statement:

“The evidence shows that prior to the expiration of Pollock's policy, the Maryland Casualty Company's general agent notified the local agent, Mr. Kizer, that this policy expired on said day and urged him to solicit a renewal of this policy, at the same time urging him to sell the assured other necessary coverage. On either the day of the expiration of such policy or the day following the respondent Pollock called at the office of the local agent and took up with him the question of renewal of the policy, and the respondent then paid the premium due for such renewal, namely, the sum of $75.00. Prior to this time there apparently had been no hard-and-fast rule or procedure for the renewal of an insurance policy as between the general agent and the local agent. The local agent handled this matter as he had in other instances. Remittance by the local agent to the general agent of the premium paid had not been made, for the reason that the local agent had at least sixty days in which to make his remittance.”

The finding that $75 was paid rests upon testimony of the credit which Pollock was to give Kizer for the amount then owing him and which indebtedness was evidenced by a bill sent by Kizer to Pollock some days...