Plaintiff issued to the defendants a policy of indemnity insurance which covered a term of three years. At the expiration of twenty-seven and one-half months the policy was cancelеd by the ■assured, which right was accorded defendants by the policy. Plaintiff claimed a balance due on the premium earned during the time the policy continued in force, and brought this suit to reсover $1843.70 as such balance.
The answer admitted the issuance of the policy to the defendants, although the name of one of the defendants does not appear in the policy as shown in the record. The answer further set up that under a special agreement made at the time the policy was issued and accepted, the premium to be paid in case of cancellation was that actually earned at the time it was canceled; and that when the policy was canceled, defendants paid the premium due for the time sаid policy was actually in force. This agreement was embodied in a “Special Cancellation Privilege” endorsed upon the policy as follows :
“It is hereby understood and agreed that if, upon the expiration of the first policy year, the assured concludes not to carry public liability insurance, this policy may be cancelled on the request of the assured, аnd the earned premium shall be computed at the rate of four dollars and eighty-five cents ($4.85), for each one hundred dollars ($100) of wages expended during the period insurance' hereunder has been in force. Nothing herein contained shall be held to affect or modify any provision or condition of the policy, other than as above stated.”
Plaintiff claims that the prеmium earned is not governed by the above agreement, but is governed by paragraph “K” of the policy, which is as follows:
The court held that under the facts оf the cancellation disclosed by the evidence, the premium earned was to be determined by paragraph “K,” and rendered judgment for the $1843.70 sued for with interest from date of suit.
The poliсy was issued to the various named companies all of whom were collectively referred to therein as “the assured.” One hundred dollars was paid on the delivery of the policy as аn estimated and minimum premium. The full premium for the three years was to be $4.60 for each $100 of “the entire compensation, whether salaries, wages, piecework, over time or allowаnces, earned by all employees of the assured not herein specifically excluded, engaged in the operation of the business herein stated during the period of this policy.” According to
The total expenditure for wages earned for the twenty-seven аnd one-half months was $318,557.77 and on the basis of this actual expenditure for that time, the expenditure for the three years would be $417,021.05', and the premium on that would be $19,182.97 at $4.60 per $100. According to ‘ ‘ short rate table” the rate, when the policy was cancelled at twenty-seven and one-half months, would be eighty-six per cent of $19>182.97 which is $16,497.35. The assured had paid $14,653.65. So that, if clause “K” applied, therе was still due plaintiff the difference between these last two amounts which is $1843.70.
“The Special Cancellation Privilege” provided that the earned premium, in the contingency mentioned therein, should be computed at the rate of $4.85 for each $100 of wages epended during the period insurance was in force. According to this rate, as the expenditure for the twenty-seven аnd one-half months was $318,557.77, the amount of premium yet due, after deducting $14,653.65 already paid, would be $198.45 instead of $1843.70.
It is true as appellant claims that if the contract contains clauses of doubtful, ambiguous or conflicting meanings they will be construed most strongly against the insurer. [Aetna Life Ins. Co. v. American Zinc etc. Co.,
The rate is to be determined under paragraph “K,” if the policy is cancelled at any time by the assured and the latter is not going out of business. If, however, at the expiration of the first policy year, the assured decides not to carry public liability insurance and the policy is canceled, then the rate is to be figured under the other provision.
There was no showing that defеndants decided not to carry public liability insurance, and the option to discontinue the policy at the end of the first year was not exercised at the time the special cancellation privilege required.
Although there was some evidence that one of the defendants — either the Consolidated Electric Light and Power Co. or the Standard Electric Light Co. — had ceased business because its franchise had expired, yet there was no showing when this occurred, whether before or after the expiration of the three years the policy had to run. If any of the companies went out of business, this was a matter ■ peculiarly within the knowledge of the defendants, and should have been alleged and proved. [Kitchen v. Railway,
On the cross-examination of onе of plaintiff’s witnesses defendant asked him if certain payments
In cross-examining another witness who testified that plaintiff made demand for the amount due in October, 1910, defendant asked him a question in reference to a receipt which the questioner evidently had before him but which was signed by other parties, and it was not disclosed whether it related to the transaction under'consideration or not. Objection was made to the question unless the receipt referred to was shown to the witness so that he might see it and know what it was and to what it applied. The paper was not shown to the witness and the obection was sustained. The writing should have been shown to the witness being cross-examined. [1 Grenleaf on Ev., sec. 463; Prewitt v. Martin, Admx.,
We are unable to see wherein any error w;as committed by the trial court. Consequently, the udgment is affirmed.