Travelers' Ins. Co. v. Pierce Engine Co.

• Decision Date: 07 December 1909
• Citation: 141 Wis. 103,123 N.W. 643
• Parties: TRAVELERS' INS. CO. v. PIERCE ENGINE CO.
• Court: Wisconsin Supreme Court

141 Wis. 103

123 N.W. 643

TRAVELERS' INS. CO.

v.PIERCE ENGINE CO.

Supreme Court of Wisconsin.

Dec. 7, 1909.

Appeal from Circuit Court, Racine County; E. B. Belden, Judge.

Action by the Travelers' Insurance Company against the Pierce Engine Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Defendant, having been insured by plaintiff against liability for injuries to certain classes of its employés during the year ending November 1, 1903, upon an agreement that it should pay for the insurance 50 cents on each $100 of wages paid to certain differently described and defined classes of employés during the year, shortly after that date made a statement to the plaintiff to the effect that its actual wages paid had been $27,000, upon which, after having paid $100 of premium at the commencement of the year, resulted a liability of $35.02 additional premium. Defendant failing and neglecting to pay this upon demand, suit was commenced therefor, in which, in the form of a general denial, it denied any liability. Thereafter, before trial, the parties entered into an agreement reciting pendency of this suit, and defendant's willingness to pay such sum as shall appear due upon a proper audit of its pay roll, and continuing: “Now, therefore, in consideration of the dismissal by the plaintiff of the action aforementioned, the Pierce Engine Company hereby agrees: (1) That the Travelers' Insurance Company may at any time, by its regular auditor, inspect and audit the pay roll books of the Pierce Engine Company for the purpose of ascertaining the exact amount earned as premium during the period in which the said policy of insurance was in force, and that for the purpose of such audit it will grant to the said auditor free access to all the original books and papers relative to the said pay roll, and will give him such assistance as he may require in making said audit. (2) That, when said auditor shall as aforesaid ascertain the amount earned by said policy in excess of one hundred ($100) dollars already paid, the Pierce Engine Company will pay the amount so found to be due to the Travelers' Insurance Company, together with the interest thereon at the rate of 6 per cent. per annum from the 1st day of November, 1903, to date, the court costs of the said action, the expenses of Messrs. Vilas and Karsten in Racine amounting to two and 84/100 dollars ($2.84), which said payment shall be received in full settlement of all claims against the said Pierce Engine Company by reason of said policy.” The auditor examined defendant's books throughout the year, and received explanation thereof from defendant by its managing officer, A. J. Pierce, together with statement of his contentions as to certain classes of employés whose wages he claimed ought not to be included under the terms of the application and policy in the basis for ascertaining the premium, and made a determination of the amount of the pay roll upon which the premium must be computed, and of the amount of total premium at $198.28, of which, as before stated, $100 had previously been paid. The present action is brought to recover that amount upon the written agreement to pay the amount found by said auditor. The principal defense set up by the answer was that the report of the auditor included certain employés and wage earners who were not “covered by said policy,” notably those engaged in boat building. The application for insurance described the business of defendant as “manufacturing of gas and gasoline engines and launches.” It provided for the payment as premium of a certain percentage of the pay roll, as above stated, and declared “the estimated pay roll includes the wages of all piece workers employed in the factories or shops, drivers, and drivers' helpers and all other employés, except as follows”; no exceptions being specified. Upon the trial it was proved that the auditor examined the books, took the statements of the defendant as to the character of the various employés and explanation of the claims of defendant as to those whose wages or salary should be omitted, duly weighed all the considerations, and made the determination before stated. The defendant then undertook to prove that certain classes of employés or wage earners were included, also to prove what claims were made with regard to them by the defendant. The court, after argument, held that the agreement was one of submission to arbitration of the general question of the amount due from the defendant to the plaintiff, and excluded such evidence and other evidence in review of the auditor's procedure and decision, and accordingly rendered judgment for the plaintiff for the amount found due by the auditor, from which judgment the defendant appeals.W. W. Rowlands, for appellant.

Charles A. Vilas (Irving A. Fish, of counsel), for respondent.

DODGE, J. (after stating the facts as above).

There is but one substantially disputed material question on this appeal, and that is whether the agreement was a submission of the question of the amount due, involving law and fact, or a mere submission to the auditor to mathematically compute the amount of the wages shown by the books to have been paid to the employés upon whose pay roll the contract of insurance required the premium to be based. The agreement may perhaps be ambiguous. The word “audit” is sometimes restricted to a...