Pacific Coast Casualty Co. v. Home Telephone Co.

SITAW, J.

Appeal from an order denying plaintiff’s motion for a new trial.

On December 31, 1903, the parties entered into a contract whereby plaintiff, for the consideration specified in the contract, agreed, for a term of one year from and after said date, to insure defendant against loss from common-law or statutory liability for damages incurred on account of bodily injury accidentally sustained by employees of defendant while in the performance of their duty at the places and while engaged in the occupations specified in said contract during the period covered by the term thereof. Plaintiff fully performed the conditions of the contract on its part.

The policy covered two classes of employees; the first consisting of those engaged in the installation of overhead and underground telephone and telegraph wires, including maintenance and extension of lines and the making of service connections, as to whom the premium was $1.20 per $100, based upon the payroll for the policy term, which premium upon the payroll as estimated for the year amounted to $900. The second class included the operators of the telephone and telegraph exchange and office force, as to whom the premium was thirteen cents per $100, based likewise upon the payroll for the policy year, the premium upon which estimated payroll amounted to $101.40. The total estimated premium of $1,001.40 was paid by defendant. The contract contained a provision to the effect that, if the compensation paid employees of defendant during the year exceeded the estimated sums upon which the premium was based, the defendant should pay additional premium upon such excess over and above the estimated payrolls, and that if such compensation should be

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less, plaintiff should refund the unearned premiums so paid by defendant.

Plaintiff alleges that the actual sum paid during the term of the policy to employees in the second class was $71,964.90, upon which the premium amounted to $93.55; and the actual amount paid for the same period to employees in the first class was $199,621.47, upon which the premium amounted to $2,395.45; making a total of $2,489, upon which defendant paid $1,208.42, leaving an alleged balance of $1,280.58, for which plaintiff prays judgment.