120 Kan. 406 | Kan. | 1926
The opinion of the court was delivered by
This was an action to recover on a policy of industrial insurance. The defense was that the deceased was not within its terms.
The controlling facts were these: One J. H. Vincent, lessee of some coal lands in Crawford county, operated these coal lands by subletting parcels of them to a number of small mining firms, one of which was the Boone & Monahan Coal Company. This firm sold its interest to Joe Fontana and three other men, who were miners by trade, and these four took over the sublease from Boone & Monahan. They named their business venture “The North Side Coal Company.” Their methods of operation were these: They worked the mine themselves and turned over the coal which they dug to J. H. Vincent, who sold it for the benefit of all concerned. The four mining partners each drew four dollars per day as for wages, which
The defendant issued a blanket policy of insurance covering all officers and employees of these small mining concerns operating on Vincent’s coal lands. It was labeled “Universal Compensation Policy,” and was dated August 1, 1922, at which time the Boone & Monahan Coal Company held the sublease which Fontana and his three partners took over in October, 1922. The policy was manifestly one for use in insuring the workmen of an employer engaged in some industry in which the workmen’s compensation act would be applicable. The insurance allowances and the circumstances under which they would be payable were mainly in accord with that statute. The policy designated Vincent as the “employer,” and the persons who were to be insured against injuries or death were designated “employees,” and the amount of the insurance premiums to be paid to the defendant monthly were to' be based on Vincent’s book accounts with his sublessees which were called “pay rolls,” and which were to be open to defendant’s inspection. Vincent was in no proper sense an employer of his sublessees, nor were Fontana and his partners or the other groups of miners who subleased and mined coal on Vincent’s lands in any proper sense the employees of Vincent, nor were the books of| accounts showing the amount of coal dug by Fontana and his fellows and their per diem of four dollars each taken from the gross proceeds of the coal so dug by Fontana and the other miners in any proper sense a pay roll of wages paid by Vincent to Fontana and his fellow workmen, but such was the rough and ready operative interpretation of the contract of insurance placed upon it by all parties concerned. Vincent collected the proper monthly premium from Fontana and his partners, and remitted'the premiums each month to defendant, less an agreed deduction allowed him as a fee for collecting the monthly premiums due from Fontana and his fellow workmen and from the similar groups of workmen mining coal under like arrangements with Vincent. The specified premium rate for insuring miners like Fontana was $2.60 for every $100 of pay, and the monthly premium for the estimated number of workmen insured as Vincent’s “em
While this insurance arrangement was inj operation, and while Fontana was at work in the coal mine operated by him and his partners, he received injuries which caused his death.
The defendant denied liability. Hence this lawsuit, which culminated in a verdict and judgment for Fontana’s widow and children for $3,915. Defendant filed a motion for a new trial on various grounds, all of which were overruled"; but the court held that the verdict was excessive to the extent of $1,173. The court also found “that such verdict was no't given under the influence of passion and prejudice,” and held that a new trial should be granted unless plaintiff elected to remit $1,173 from the amount of the verdict. Plaintiff declined to remit, and a new trial was ordered.
Both parties appeal. Defendant urges a review of a characteristic list of trial errors, and plaintiff’s cross appeal pertains to the granting of a new trial on the single ground specifically made the basis therefor by the trial court — the excessiveness of the verdict.
Touching the matters urged on our attention by defendant, it argues, first, that since plaintiff’s petition did not allege facts justify
This conclusion virtually disposes of defendant’s contention that plaintiff failed to prove that Fontana became a beneficiary of the policy issued to Vincent when he and his fellows took over the coal diggings of Boone & Monahan. If not otherwise proved, it was clearly established by ratification. Defendant regularly received the monthly premium exacted from Fontana and his three fellow workmen. It was quite content to accept premiums from them instead of the unnamed persons constituting “Boone & Monahan
The next point urged by defendant is the unique one that since the insurance which it afforded ;was based upon the standard of liabilities attaching to compensable casualties under" the workmen’s compensation act, defendant stood on the same footing as an actual employer of workmen and as such was entitled to have the question of the amount of compensation and similar issuable facts determined by arbitration as prescribed by the workmen’s compensation act. One sufficient answer to this point, out of several obviously available, is that defendant did not ask for arbitration.
Appellant also complains of the instructions. These are too long for reproduction. They state, in substance, that although the name of Joe Fontana or the North Side Coal Company did not specifically appear in the insurance policy issued to Vincent, yet if Fontana paid the insurance premium to Vincent and if Vincent was authorized to accept it, and if it was so paid and remitted to and retained by defendant, Fontana was within the protection of the policy. This rule of law was developed at length in the instructions and it was not erroneous under the facts and circumstances of the case.
The other matters urged by defendant have been carefully noted, but need no discussion. Nothing prejudicial to defendant is disclosed in the record. But before passing to the cross appeal, it may be well to observe that the court is not sure that appellant is entitled to the review we have just accorded it, as it asked and obtained a new trial. It is true, however, that every ground for a new trial urged by defendant was overruled and its motion denied. The trial court, sua sponte, ordered a new trial because of excessive verdict. And that point leads to a consideration of plaintiff’s cross appeal.
Was there any evidence to support the trial court’s finding that the verdict for $3,915 was excessive? While it is true that there was some testimony that the scale of wages was $7.50 per day, yet it did not appear that workmen in that locality had been employed and
But there is nothing else to try. The litigants ought not to be put to needless expense of relitigating issues already determined. It has been determined that the deceased was protected by the insurance contract, and it has been determined that defendant is liable. The trial court overruled all defendant’s objections based on trial errors in the determination of those issues. This in effect was an approval by the trial court of all that had been determined except the extent of defendant’s liability. Regularly or otherwise, defendant has invoked and obtained an appellate review of that ruling, and we can discern no prejudicial error therein of which defendant can justly complain. So the only matter yet to be determined is the amount of defendant’s liability. The code authorizes such limita
The judgment of this court will be that defendant’s appeal is not sustained; and on plaintiff’s cross appeal, the order granting a new trial will be modified so as to limit such new trial to a determination of the amount of defendant’s'liability to plaintiff, and so modified, it will be affirmed.
It is so ordered.