Ocean Accident & Guarantee Corp. v. Johnson

THE COURT.

At the time this action was before the district court of appeal, second district, second division, each of the three justices thereof prepared and filed separate opinions, in one of which the justice writing the same dissented from the conclusion reached by his two associates in the respective opinions prepared by them. It was largely due to this diversity of sentiment among the members of the district court of appeal that we granted the petition for a hearing in this court. After a more thorough examination and study of the several opinions rendered by the members of the district court of appeal and the law applicable to the questions involved herein, we have arrived at the conclusion that the opinion written by Mr. Justice Craig of said district court of appeal coincides with the views of this court, and we hereby adopt the same as the opinion of this court. Said opinion is as follows:

“ The transaction out of which this action arose is one of employer’s liability insurance. The suit is for unpaid premium thereon. The counts are contained in the complaint. The first count alleges that the defendants became indebted to the plaintiff in the sum of $1,113.77 on account of premiums earned on a written policy of workmen’s compensation insurance covering a period of one year, of which only $591.89 had been paid, and $521.88 was due and unpaid. The second count alleges an account stated upon the same transaction by which the defendants agreed to pay the plaintiff $1,113.77, and had paid $591.89. From the bill of exceptions it appears that at the trial plaintiff introduced evidence to show that it issued a policy as alleged, that the work covered by it as stated in the contract was ‘Truckmen, general trucking (Not otherwise classified), classification No.

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7208, premium rate $3.77. Payroll to include all such employees as drivers, drivers’ helpers, chauffeurs, chauffeurs’ helpers, stablemen, blacksmiths, repairmen and riggers, excluding only clerical office employees and storage warehouse employees.” Also that the place stipulated as that where the work was to be done was ‘ Calexico, Imperial county, California. ’ Section ‘H’ of the policy is one over which the controversy principally arose. It reads, in part, as follows: ‘The premium is based upon the entire remuneration earned during the policy period by all employees of the assured, and all employees of any contractor or subcontractor of the assured, engaged in the trade, business or work described in said declarations. . . . The assured shall keep complete and accurate record of the remuneration earned by employees classified according to the kind of work performed, and shall cause contractors and subcontractors to do likewise by inserting in all contract agreements entered into a provision requiring such records to be kept for examination by the assured and the corporation. Failure to keep such records on the part of the assured shall entitle the corporation to apply to the entire remuneration earned the premium rate applicable to the most hazardous work performed. ’