Eurich v. General Casualty & Surety Co.

Pattison, J., delivered the opinion of the Court. Clarence E. Eurich, an employee of Walter E. Allen, was killed on the 25 th day of December, 1924. Allen at that time was engaged in road construction work in Howard County, and Eurich was employed by him as fireman of the boilers ²¹¹ used, in connection with that work. Enrich, whose duty it was to keep the fires going, left his home Christinas morning in his automobile to go to the location of the boilers, which was four miles away.

In going over the concrete road, upon which there was ice, his car skidded and came in contact with a telephone pole, which caused his death. On December 30th, 1924, Allen, the employer, filed with the State Industrial Accident Commission his report of the accident to Enrich, resulting- in his death, naming the Georgia Casualty Company as. his insurer. And Laura V. Enrich, the widow, on January 5th, 1925, filed her claim for compensation. A policy of insurance had been issued to Allen by the General Casualty and Surety Company on the 13th day of August, 3924, and though notice of its cancellation had been given to the commission, it was shown by its records that such cancellation ivas not to become effective until January 8th, 1925, which was after the accident had happened.

At the request of the attorneys of both companies, a hearing on the claim was had by the State Industrial Accident Commission, and an order was passed on March 21st, 1925, awarding compensation and holding that both the Georgia Casualty Company and the General Casualty and Surety Company were insurers of Allen. Appeals were taken from this order by both companies and the consolidated cases were tried by Judge Ulman in the Superior Court of Baltimore City, sitting without a jury. At the trial of the case in the Superior Court, the Georgia Casualty Company asked for the following issues: .First, Did the death of Clarence E. Eurich on December 25th, 1924, result from an accidental injury, which arose out of and in the course of his employment ? “Second, Had the General Casualty and Surety Company given notice to the State Industrial Accident Commission of its intention to cancel its policy as by statute required ? “Third, Was the policy of the General Casualty and Surety Company effective on this risk at the time of the accident oil ²¹² December 25th, 1924, when the death of Clarence E. Eurich occurred ?” The court granted the first and third issues, answering the first issue “Yes” and the third issue “Ko,” but refused to grant the second issue. The General Casualty and Surety Company filed certain issues, which were withdrawn, and the issues filed by the claimant were not called to the attention of the court and consequently were not acted upon.

Two prayers offered by the General Casualty and Surety Company, known as its first and third prayers, were granted. As a result of the aforesaid answers to the issues, the court entered a judgment in favor of the claimant Laura V. Eurich, widow, against Walter E. Allen, employer, and the Georgia Casualty Company, insurer, and also entered a judgment in favor of the General Casualty and Surety Company for costs. Erom this action of the lower court two appeals have been taken to this Court, one by Laura V. Eurich, claimant, and the other by Walter E. Allen, employer, and the Georgia Casualty Company, insurer, the General Casualty and Surety Company being the appellee in both appeals. The chief question presented by these appeals is whether there was any insurance, issued by the General Casualty and Surety Company to Allen, in force at the time of the accident resulting in Eurich’s death.

In the early part of December, the vice-president of the General Casualty and Surety Company came to Baltimore to take up with the Tweeddale Company, its agent in that city, the adjustment of a number of items, including the payment of the premium due upon the Allen policy. Tweed-dale, who was also agent of the Georgia Casualty Company, when asked by said vice-president if he would advance the unpaid premium on the Allen policy, said he would see William 0. Dittman, the broker upon whose application the policy had been issued, concerning the payment of the premium. When seen, Dittman refused to advance the payment of the premium and suggested that a new policy be written, ²¹³ and as stated by both Tweeddale and Dittman, a new policy in the Georgia Casualty Company was, on the 13th day of December, 1924, written and delivered to Dittman, the broker of Allen, who, it seems, had a blanket authority from Allen to keep him insured, but Dittman did not deliver the policy to Allen until after the accident, as he “had no occasion to go to Allen’s” before its happening, but when seen by him, he delivered to Allen the new policy and received from him the old one, with a letter Allen had received from the assistant secretary of the General Casualty and Surety Company, dated the 24th day of December, 1924, in which he was told that the policy of that company was cancelled for non-payment of premium — “'Cancellation effective of the 5th day of January, 1925.” At the time this letter was written, it was not known to the writer that the policy in the General Casualty and Surety Company had been rewritten, on December 13th, 1924, in the Georgia Casualty Company.

Upon the issuance of the policy by the Georgia Casualty Company, its general eastern agents, Lowndes & Lowndes, of Baltimore City, notified the State Industrial Accident Commission that their