Rolens v. Keller Const. Co.

• Decision Date: 04 March 1930
• Docket Number: No. 20929.,20929.
• Citation: 24 S.W.2d 1077
• Parties: ROLENS v. KELLER CONST. CO. et al.
• Court: Missouri Court of Appeals

24 S.W.2d 1077

ROLENS v. KELLER CONST. CO. et al.

No. 20929.

St. Louis Court of Appeals. Missouri.

March 4, 1930.

Rehearing Denied March 18, 1930.

Appeal from St. Louis Circuit Court; M. N. Sale, Judge.

"Not to be officially published."

Proceedings under the Workmen's Compensation Act by Richard E. Rolens, employee, claimant, opposed by the Keller Construction Company, employer, and the General Accident, Fire & Life Assurance Corporation, Limited, insurer. From a judgment of the circuit court of the city of St. Louis affirming an award by the Workmen's Compensation Commission, the insurer appeals.

Affirmed.

W. E. Moser and Hensley, Allen & Marsalek, all of St. Louis, for appellant.

Bartley & Mayfield, of St. Louis, for respondent.

Greensfelder, Rosenberger & Grand, of St. Louis, for defendant.

BECKER, J.

This is an appeal from a judgment of the circuit court of the city of St. Louis affirming an award by the Missouri Workmen's Compensation Commission. The respondent, Richard E. Rolens, suffered an injury on February 7, 1928, which arose out of and in the course of his employment by Bernard Keller. To collect compensation for this injury, he instituted a claim before the Missouri Workmen's Compensation Commission against Keller, doing business as the Keller Construction Company, and against the General Accident, First & Life Assurance Corporation, Limited, alleged to be Keller's insurer.

The insurer denied liability to Rolens, alleging that prior to the accident the policy which it had issued to Keller had been surrendered by Keller to it and canceled.

The commission allowed Rolens compensation against both the employer and the insurer, and on the insurer's appeal to the circuit court the award was affirmed. The insurer thereupon perfected its appeal to this court, and the sole controverted issue here is the contention of the insurer that the policy was not in effect on the day of the accident, but had theretofore been surrendered and canceled.

The commission bases its award against the appellant here, the insurer, upon the following finding of facts:

"The principal question in the case is as to the liability of the insurer, as to which the facts are as follows:

"The insurer duly issued its workmen's compensation policy No. U-163,305 covering the employer for the year ending March 24, 1928. The agent of the insurer who issued the policy paid the initial premium, which was small, and charged the same to the account of the broker, who officed with him. The balance of the premium was subject to payroll audit. The broker also placed two other policies for the employer, with the understanding that from time to time the employer was to make payments on account of the premiums on all his policies whenever he could, and the amounts so paid by the employer, while small, were a substantial part of the amount due. The broker did not deliver any of the policies to the employer but kept them as security until they were paid up. He said, `I made a ruling a year or so ago I would never deliver another policy to him until he was paid up. He was very slow in paying and I got short of money myself and I turned the policies back myself. I hold only a household goods policy. * * * I did not notify Mr. Keller (that the policies were turned back).' The payroll audit was not made until early in January, 1927. It disclosed an earned premium of but $72.66, and the reserve for losses amounted to $225.00. Under date of January 7, the agent wrote the broker that in view of this the home office was requesting immediate cancellation and that `if you can find it convenient to return the policy prior to January 15th, it will not be necessary for us to send registered notice to the assured on that date.' The broker surrendered the policy about January 20, 1928, and the accident happened on February 27, 1928. The policy required written notice of cancellation to be given to the employer and neither broker, agent or insurer ever sent any written notice thereof to the employer and he had no knowledge of the cancellation until several days after the accident.

"These facts show that in spite of the contention that in holding the policy the broker was agent of the employer and notice of cancellation to the broker was sufficient, that the broker was holding it as security for the payment of the premium and had an interest adverse to the principal. The law is well settled that notice to the agent is not notice to the principal when the interest of the agent is adverse to that of the principal. And in Edwards v. Sun Insurance Co., 101 Mo. App. 45, 50, 73 S. W. 886, 888, it is said that `A person holding an insurance policy as collateral security certainly has no right, unless the circumstances are exceptional, to consent to the cancellation of the insurance without notice to the owner, and thereby leave the property uninsured, and the owner ignorant of that fact.' In the case at bar there were no exceptional circumstances, and as the policy could not be cancelled without notice to the employer, and no such notice was given, it was valid and enforceable on the day of the accident and the insurer is liable."

The finding of facts and award of the commission have the force and effect of a verdict of a jury. Kinder v. Hannibal Car Wheel & Foundry Co. (Mo. App.) 18 S.W.(2d) 91, and cases cited. Our reading of the record has brought us to the conclusion that such finding of facts is supported by substantial evidence, and that the award of the commission and the judgment of the circuit court affirming it should be affirmed.

There is testimony in the record which, if believed, tends to show that Bernard Keller, the employer, had for some years been obtaining such insurance as was required in his business through Henry Weil, an insurance broker. Weil had an office in the suite of, and an arrangement with, the Mercantile Insurance Agency, under which he turned in all his business to them to be placed in the various companies which such agency represented. When on occasion an item of business arose which the agency could not write, Weil would then place such business with other companies. Since 1924 Weil had been handling Keller's insurance business for him.

Keller testified that he did not exercise any control over Weil relative to his insurance, but depended upon him to take care of it for him, excepting that he himself watched the expirations of the policies. The Mercantile Insurance Agency billed Keller direct for the premiums due on such policies as were issued through it. It had an understanding with Weil, however, that, in the event Keller did not ultimately pay the premiums on his policies, they would be charged to his (Weil's) account. From time to time Keller made payments on his account to the Mercantile Insurance Agency in cash.

In March, 1927, Weil, through the Mercantile Insurance Agency, obtained for Keller the workmen's compensation policy, here in contest, from the General Accident, Fire & Life Assurance Corporation, Limited. Weil, however, did not turn this policy over to Keller; his statement with reference thereto being that "I made a rule a year or so ago I would never deliver another policy to him until he was paid up. He was very slow in paying, and I got short of money myself and I turned the policy back myself. I hold only a household goods policy." * * *

"Q. Did you notify Mr. Keller? A. I did not. * * *

"Q. And this policy you...