Fidelity & Casualty Co. v. Tyler Cotton Oil Co.

LEVY, J.

(after stating the facts as above).

[1] There is evidence to support the finding of the trial court that appellee rendered to appellant true statements of its pay roll in compliance with the terms of the policies, and that appellee had paid all premiums due by it under each of the policies. Therefore the assignments of error challenging the action of the court in rendering judgment against appellant must be, it is believed, overruled. The president and manager of ap-pellee testified:

“That the policies introduced in evidence were the ones, or copies of the ones, that had been issued to tho Tyler Cotton Oil Company by plaintiff, and that the reports made under said policies are the reports made by him to plaintiff. That, at the time he made the reports, he took from the books of the Tyler Cotton Oil Company all the labor included in said policies and made a full, true and correct report of it. That no other labor had been paid for by the Tyler Cotton Oil Company except as reported by him under these reports. That he personally made the reports and knew they were correct as shown by and reflected by the books. That the additional premium was paid. That frequently the employés of the Tyler Canning Company would be paid off at the Tyler Cotton Oil Company’s office, and that the amounts paid to the employés of the canning company would be entered upon the books of the oil company. That if the witness Allen in his examination of the books found the figures testified to by him, then they included amounts paid to employs of canning company. * * * That the salaries of the bookkeeper and manager amounting to about $2,500 per year, was not included in the report made by him to the company under either one of the policies, and did not show on the payrolls for labor; and that at the time these policies were taken out he did not intend to include the salary of the bookkeeper and manager, and their salaries did not go on the labor record.”

[2] The fact that the reports of the compensation paid omitted and did not include the salaries of the manager and the bookkeeper would not, it is thought, entitle appellant to recover premiums based thereon. There is not failure on the part of the appellee to pay premium as contracted if the salaries of such persons “did not go on the labor record” and were not in the estimated compensation given in the schedule, as comprehended in the court’s finding. It was contracted, as provided in the policy, that the premium to be paid for the indemnity should be based “on the entire compensation of which an estimate is given in the schedule.” And the policy expressly provides that it does not cover indemnity to the assured for injury or death suffered by any reason “unless his compensation is included in the estimate set forth in the schedule.” It was therefore reasonably meant by the parties that the premium payable was to be based on the entire compensation of all such employés engaged in the business whose compensation was actually included in the estimate set forth in the schedule.

The judgment is affirmed.

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