ON REHEARING. After carefully reviewing this case for the second time we are still of the opinion that there was no authority in the agent who solicited the insurance to attach the rider to the policy, but that he was prohibited from doing so and that there was no holding out by the defendant of the agent as having authority to attach the rider. We are also of the opinion that the record wholly fails to show that plaintiff relied on the representations claimed to have been made to him by the agent and that he was induced to take out the policy by reason of such representations. Under such circumstances the rider was no part of the policy and no right can be claimed by plaintiff under it.
However, defendant's demurrer to the evidence was properly overruled as we are of the opinion that the pleadings are broad enough to permit a recovery of the bonus actually earned. The petition is a suit upon the policy, a verified copy of which is attached to the petition, and while the petition pleads in haecverba that part of the policy containing the rider, it further pleads that at the end of the bonus period mentioned in the policy plaintiff "was entitled as a cash option the payment due him by defendant upon the terms of said policy in the sum of $4010." This allegation is general and is not confined to or made under the terms of the policy as set forth in the rider alone but is broad enough to refer to the terms of the policy as a whole. Defendant recognized that the suit was upon the whole policy and not solely upon the rider, for as a part of its defense it pleaded that it had calculated the bonus or surplus under the terms of the policy and that such sum was $100.95 and was the correct amount due, which defendant tendered in the answer.
While the declarations of law and findings of fact *Page 62 given and refused show that the court decided for plaintiff upon the theory set up in plaintiff's reply, which, as we have said, there was no evidence to sustain, the material evidence is undisputed and the decision of the case rests entirely upon a question of law. If the decision of the lower court can be sustained upon any theory, it is our duty to uphold it. As we stated in the original opinion, the evidence shows that defendant issued a rate book with estimates therein of what the policy would earn in the way of bonus; also sheets or slips and cards containing blank spaces for like estimates which soliciting agents were authorized to fill in from figures contained in the rate book. This literature, together with the circular which is mentioned in the original opinion, was authorized to be used by agents in soliciting insurance. This rate book was introduced in evidence. Disregarding the rider, the policy proper provides for the payment of a bonus to be apportioned at the end of the twenty-year period, which might be withdrawn at that time in cash. The application, made a part of the policy, also provided "that in any distribution of bonus, profit or surplus the company's method and determination of the amount to be apportioned to any policy issued hereon is hereby ratified and accepted." As was stated in Thomas v. Equitable Life Assurance Society, 198 Mo. App. 533, 541 — "Now that showing (the estimate)was of some probative force. The true amount was wholly unknown to plaintiff, but was fully known to defendant. It had data at hand from which it could, at any moment, furnish complete information." (Italics ours.)
And it was held that the burden was upon defendant to show the true amount if it meant to dispute the estimate. It is further said in that case at l.c. 542 — "The surplus arising on a policy like this is, as we have said, a trust fund in the hands of the insurance company. It is the duty of such companies to keep a record of it, and it is common knowledge that they have a system, evidenced by their books, whereby they keep trace of its growth as well as its decline, so that they may at the proper time for *Page 63 accounting to the policy-holder render to him, or produce to the court, a statement showing the fact. [Equitable Life Assurance Society v. Winn, 137 Ky. 641, 648.] It would be unjust as it is absurd to say that an insurance company may apportion an arbitrary amount as the surplus and when its correctness is questioned, to allow it to hide the fact by refusing to produce the evidence showing such fact."
Defendant wholly failed to produce the evidence necessary to "show what was due under it (the policy) — how ascertained, and from what sources." [Thomas v. Equitable Life Assurance Society, supra, 538.] That defendant has not done this is fully shown in the original opinion filed in the case. Defendant asks us to overrule the Thomas case. While the writer hereof dissented in that case and is not now convinced that he was wholly wrong, he has long since acquiesced in the majority opinion; that opinion became the law and the writer hereof sees no good reason to agitate the question.
The judgment is affirmed. All concur.