Casebeer v. Alliance Mutual Casualty Co.

The opinion of the court was delivered by

Fatzer, J.:

The appellee asks for rehearing and clarification of the decision of the court previously rendered reversing this appeal. (Casebeer v. Alliance Mutual Casualty Co., 203 Kan. 425, 454 P. 2d 511.) We have examined the record, the former opinion, and the arguments and authorities cited in support of the motion for rehearing, and upon consideration by the court, it is denied.

The appellee’s request for clarification of our former opinion with respect to the manner of computing statutory interest on the judgment awarded the appellant, is granted.

In our former opinion reversing the appeal, the district court was directed:

“[T]o sustain the plaintiff’s motion for summary judgment, and compute the amount due the plaintiff in accordance with 44-512a, together with the statutory interest, and to credit such total amount with the amount of the eight drafts mailed by Alliance to the plaintiff on November 16, 1967.” (1. c. 436.)

The plaintiff’s petition alleged his statutory demand was served upon Alliance May 13, 1967. Alliance had twenty days thereafter, or until June 2, 1967, in which to pay all compensation then due and unpaid. (K. S. A. 44-512a.) Alliance concedes the amount of compensation due the plaintiff on June 2, 1967, totaled in the sum of $8,398.79, and that it failed and refused to pay the same. That was the amount due the plaintiff when the district court considered his motion for summary judgment.

Statutory interest should be computed on the sum of $8,398.79 from June 2, 1967, to November 16, 1967, when Alliance paid the plaintiff $5,725.24, and interest should be computed on the remaining unpaid balance of $2,673.55 from November 16, 1967, until paid. (K. S. A. 44-512a, 16-201; Fleming v. National Cash Register Co., 188 Kan. 571, 363 P. 2d 432.)

Fromme, J., dissenting: The clarification requested was necessary and was properly granted, but the motion for rehearing should have been granted.

Schroeder, J., joins in the foregoing dissent.