Fidelity & Casualty Co. of New York v. J. W. Crowdus Drug Co. , 1914 Tex. App. LEXIS 437 ( 1914 )

LEVY, J.

(after stating the facts as above). According to the policy, the appellant contracted to indemnify the appellee' against loss in legal liability for damages “in consideration of $113.90 premium and the statements hereinafter set forth in the Schedule of Statements.” It is further stipulated in. the policy that “the. premium for this policy is based on the data given in the Schedule. If the compensation of employés is greater or less than the estimated sum stated in the Schedule, or if the date otherwise given in the Schedule is erroneous, the premium charge shall be subject to adjustment on the basis of the rates stated in the analysis of premium given below.” The “rates stated in the analysis of premium” given in the policy provides “5 cents per $100” of the wages paid “office employes,” and “20 cents per $100” of the wages paid “all other employés engaged on the premises.” Appellee-by,accepting the policy would be held to have agreed to all its terms. The policy clearly evidences the agreement of the parties to base the sum of the premium payable on the amount of wages paid by appellee to its employés at the rates specified in the policy for each $100 paid such employés. According to the wording of the policy, the sum of $113.90 was placed therein as the premium payable under the rates specified as base'd on the data given in the schedule. The data- given in the schedule, which was furnished by appellee for the purpose of fixing the amount of the premium, shows “estimated wages” paid employés in the total sum of $12,000. The $113.90 recited as the sum of premium payable being, ac: cording to the policy, fixed on “estimated wages” only, then, in view of the further stipulation of the parties, and under the undisputed facts of this ease, the sum of $113.-90 woqld not be conclusive of the amount of premium that was payable by appellee. The further stipulation provided that the premium charge should be “subject to adjustment” if “the compensation is greater or less than the estimated sum stated in the Schedule, or if the data otherwise given in the Schedule is erroneous.” It was proven without dispute that the “estimated wages” in the total amount of $12,000 stated in the schedule was way below the true and correct amount of the total wages paid by appellee to its em-ployés. And the true and correct amount shown by the books of appellee was conclusively proven. The true and correct amount of the total wages paid its employés being thus truly arrived at, it then became, under the policy, a mere matter of mathematical calculation, and nothing more, to get the amount of the premium payable, for the rates were expressly fixed and agreed upon in the face of the policy. Where there is nothing left open for the parties to do but to ascertain the amount of the pay roll and then merely to mathematically compute, as here, the amount of the premium, the agreement of the parties should, in order to carry out its purpose and plain intent, be understood as meaning to pay what may be due from one party to the other. And in view of the stipulation of the parties and the undisputed facts, it is believed that the appellant has shown a right of recovery for the additional amount of premiums, which, in amount, are admitted. There is no evidence of any probative force whatever introduced showing that appellant, or its authorized agent acting within the scope of his authority, had waived its right to the additional premium sued for. It follows that appellant was entitled, under the facts, as a matter of law, to recover, and the court should have given the peremptory instruction asked for by appellant. Assignment No. 1 is therefore sustained, and this disposes of the appeal.

The appellee argues that the rider on the policy fixes the premium payable and should control. The rider merely authorizes a renewal, and does not introduce new or additional terms, or modify or alter Condition N in the policy.

The judgment is reversed and here rendered in favor of the appellant for $207.54, with interest at 6 per cent, from October 25, 1911, and for the costs of the trial court and of this appeal.