This action grows out of proceedings originally instituted by the appellant Alice M. Hauter on behalf of herself and her minor son Granville Hauter, before the Industrial Accident Board of the state of Idaho, against the Coeur d'Alene Antimony Mining Company, a corporation engaged in operating its property near Kellogg, Idaho, to recover compensation on account of the death of her husband, who died as the result of an injury received by him while an employee of that company on the 17th day of November, 1918. The Industrial Accident Board on October 6, 1920, made certain findings of fact and rulings of law thereon, and ordered, adjudged and decreed that the claimant Alice M. Hauter receive from said Coeur d'Alene Antimony Mining Company the sum of $12 per week for a period of 400 weeks, unless she should die or remarry prior to the expiration of such time, together with $100 for funeral expenses of her deceased husband, and that said minor son, Granville Hauter, receive $10.80 per week for a period of four years, two months and fourteen days, the total award being $7,261.60. This award having been certified to the district court in and for Shoshone county, Idaho, in accordance with C. S., sec. 6271, a judgment was made and entered thereon by said court March 25, 1921, affirming said award against said company in the sum of $7,261.60.
June 30, 1921, Alice M. Hauter was appointed guardian adlitem for the infant Granville Hauter, and on the same day she petitioned the court for a writ of execution supplementary to judgment, alleging that respondent Aetna Life Insurance Company was a Connecticut corporation, organized for the purpose of selling life, accident and liability insurance, surety bonds covering the liability of employers under said compensation act, and various other forms of insurance and indemnity bonds, and that respondent in this capacity was carrying on a general *Page 625 insurance business in this state; that Alice M. Hauter is the surviving widow of Arthur F. Hauter, deceased; that she was wholly dependent upon him for support at the time of his death, as was also the minor son, Granville Hauter; that she had been appointed his guardian ad litem, and had qualified and was acting as such; that about January 1, 1918, respondent Aetna Life Insurance Company entered into a contract of insurance with the other respondent Coeur d'Alene Antimony Mining Company, made exhibit "A" of the petition; that it was in full force and effect in November, 1918, at the time of the injury and death of Arthur F. Hauter, who was at the time of the injury which resulted in his death working for the Coeur d'Alene Antimony Mining Company in its mining operations at Pine Creek, Shoshone County, Idaho; and that while in such employment, and in the course of the same, he was fatally injured.
It is further alleged that on March 24, 1921, the district court in and for the county of Shoshone duly gave and entered its judgment in favor of petitioner and against the mining company for the sum of $7,261.60, as compensation to petitioner for the death of Arthur F. Hauter, the same to be paid to appellant Alice M. Hauter at the rate of $12 per week and to the minor son at the rate of $10.80 per week; that respondent Aetna Life Insurance Company, pursuant to its contract with respondent mining company, promised and agreed to pay this judgment as the same became due and payable, and all liability arising therefrom or thereunder, and that by reason thereof respondent life insurance company was and is liable to appellant for the sum now due and to become due upon said judgment, under and pursuant to the laws of the state of Idaho; that it is a proper and necessary party to this action; that appellant Alice M. Hauter has not remarried since the death of her husband, and that neither the whole nor any part of said judgment has been paid; that the amount is due and payable according to the terms of the award to herself and minor child. Appellant prays that an order issue directing *Page 626 said Aetna Life Insurance Company to appear and show cause why execution should not be issued against it for the payment of said award.
The court issued a citation to the insurance company, directing that it be made a party to said action for all purposes, the same as if it had been made an original party to the proceedings before the Industrial Accident Board. It appeared and demurred to the petition on the grounds: (1) That it did not state facts sufficient to constitute a cause of action or to show a right of recovery against it for the relief prayed for, or any relief whatever; (2) that the court was without jurisdiction of the subject of the action; (3) that the cause of action attempted to be set forth in the petition was barred by the provisions of C. S., secs. 6612 and 6243. The demurrer being overruled, it answered, not waiving its demurrer or objections to the jurisdiction of the court or the sufficiency of the petition; admitted the execution of the contract of insurance pleaded in the petition, but alleged that it canceled the same prior to the happening of the accident that caused the death of Arthur F. Hauter; and alleged that it was not a party to the proceedings brought before the Industrial Accident Board and had not had an opportunity to be heard at said hearing, and is not bound by the decisions, findings or ruling of said board. It alleged that the judgment or award made by said board was obtained by collusion between appellant Alice M. Hauter and her attorneys and the other respondent, the Coeur d'Alene Antimony Mining Company; that at the time of the death of Arthur F. Hauter he was not within the provisions of the Workmen's Compensation Act, because he was receiving compensation or wages amounting to more than $2,400 per year; that the Coeur d'Alene Antimony Mining Company, at the time such award was made, pretended to be insolvent, so that such award could not be collected from it. For an affirmative defense, it pleaded that on January 1, 1918, said Coeur d'Alene Antimony Mining Company elected to and did file with the insurance manager of the state of Idaho, as required by law, a surety *Page 627 bond executed by the Aetna Casualty Surety Company, and on January 1, 1918, secured from said Aetna. Casualty Surety Company and filed with said Industrial Accident Board a certain agreement, which was made a part of the answer; that on August 8, 1918, it served upon said mining company a notice that said Workmen's Compensation Policy No. C-0319469 and Bond No. S-98733 be canceled, such cancelation to be effective August 20, 1918, on account of nonpayment of premium due; and that the same were canceled.
It is further alleged that as the said petitioner was at that time within the jurisdiction of the Industrial Accident Board, and did not at any time file a separate claim against this respondent, and did not and has not made it a party to the original claim for compensation for the alleged injury or death, petitioner has forfeited any right against this respondent, and it prays to be dismissed from the proceedings.
Upon issues thus joined, a hearing was had before the court, and at the close thereof respondent insurance company moved for a nonsuit and a dismissal of the action against it on the grounds: (1) That the evidence is insufficient to show that at the time of the accident and death of Hauter he was within the provisions of the Idaho Workmen's Compensation Act, but affirmatively shows that he was not, because he was earning more than $2,400 a year; (3) that the cause of action is barred by the provisions of C. S., secs. 6612 and 6243. This motion for nonsuit was granted, on the grounds and for the reason that the evidence is insufficient to support any judgment in favor of the appellant petitioner against the respondent Aetna Life Insurance Company, and that the evidence affirmatively shows that petitioner has no cause of action against the said life insurance company, for the reasons more particularly set forth in the motion for nonsuit. From this decision of the district court, this appeal is taken.
The nonsuit was allowed upon the grounds that the evidence was insufficient to support any judgment in favor *Page 628 of appellant and against the insurance company, and that such evidence affirmatively shows that appellant has no cause of action against said company, for the reasons specified in the motion. We conclude that the controlling questions in this case are: (1) Was this policy in effect at the time of the accident that resulted in the death of the deceased Hauter? (2) Was he at that time within the provisions of the Workmen's Compensation Act? (3) If the policy was not canceled and the deceased Hauter was within the provisions of the act, are the rights of appellant barred by either C. S., sec. 6243 or 6612?
Appellant erroneously argues that because respondent insurance company endeavored to collect the premium earned to the date of the attempted cancelation after such time, this was in effect a waiver of the notice of cancelation. There is no merit in this contention. An insurance company is entitled to collect all premiums earned to the time of its election to cancel the policy. (Skoczlois v. Vinocour, 221 N.Y. 276,116 N.E. 1004.)
Respondent claims that because it was not made a party to any of the proceedings before the Industrial Accident Board, and the claimant never having asserted any right of action against it in any of the proceedings before the board, even if the policy had not been canceled, it is too late for claimant to enforce the award against it, and the trial court appears to have taken this view in granting the nonsuit. An order sustaining a motion for nonsuit admits the truth of the adversary's evidence and every inference of fact that may be legitimately drawn therefrom. (Marshall v. Gilster, 34 Idaho 420,201 P. 711; Pocatello Security Trust Co. v. Henry,35 Idaho 321, 27 A.L.R. 337, 206 P. 175.) The contract of insurance, as required by C. S., secs. 6282 and 6283, contains an indorsement made after the same was written, which in part reads as follows:
"The policy covers the entire liability of the assured for compensation to his employees covered by the policy. Such employees shall have the right to enforce in their own names either by at any time filing a separate claim *Page 629 or by at any time making the company a party to the original claim, the liability of the company in whole or in part for the payment of such compensation. . . . .
"The jurisdiction of the assured shall, for the purposes of the Workmen's Compensation Act, be jurisdiction of the company, and the company shall in all things be bound by and subject to the orders, findings, decisions or awards rendered against the assured for the payment of compensation under the provisions of said Act."
The respondent insurance company was not a party to any of the proceedings had before the Industrial Accident Board, and was first brought into this suit by this petition for a writ of execution supplementary to judgment on June 30, 1920. As stated, the court overruled respondent insurance company's general and special demurrer, and it answered over and set up by way of defense the facts alleged in its answer, which we have already outlined. The cause was heard and determined by the court below upon the issues of law and fact tendered by this petition for a writ of execution and respondent's answer thereto. No cross-appeal having been taken to the order overruling the general demurrer or otherwise challenging the jurisdiction of the court to hear and determine these questions, the cause appears to have been tried upon the theory that the court had jurisdiction to hear and determine the issues presented by these pleadings, by reason of the provisions contained in the indorsement on the policy above quoted.
Upon this state of the record, the questions presented for determination are, first, as to whether or not the insurance policy, No. C-0319469, was in fact canceled; secondly, if not canceled, was the deceased at the time of the injury within the provisions of the Workmen's Compensation Act; and third, if both of these should be answered affirmatively, was the cause of action set up in said petition barred by the provisions of C. S., secs. 6612 and 6243.
Considering the question of whether this policy had been canceled: The record discloses that the insurance company *Page 630 sent to the assured mining company a notice reading as follows:
"August 8th, 1918.
"Coeur d'Alene Antimony Mining Company,
"Kellogg, Idaho.
"Gentlemen:
"The Aetna Life Insurance Company and The Aetna Casualty and Surety Company, notify you that they hereby cancel their Workmen's Compensation Policy No. C-0319469 and Bond No. S-98733, said cancelation to be effective August 20th, 1918, in accordance with its conditions, on account of nonpayment of premium due, after which date the policy and bond becomes null and void without further notice.
"Very truly yours, "ROSSI INSURANCE AND INVESTMENT COMPANY, "By _______________, "General Agents."
The policy itself contains the following conditions:
"10. The policy shall become effective on the first day of January, 1918, at 12:01 A. M., and shall continue in force until canceled in accordance with the provisions of paragraph H of the General Agreements."
"H. This policy shall be canceled at any time by either of the parties hereto by giving not less than thirty (30) days written notice to the other party of such cancelation, which shall be effective at noon on the day specified for cancelation in said notice, etc."
We think that the attempt to cancel the policy, not having been made in accordance with the conditions and requirements specified in the instrument itself, was ineffectual, and such policy was in force at the time of the happening of the injury complained of. The notice of cancelation clearly does not comply with the requirements of the contract itself, for the notice provides that the cancelation of both the bond and the policy of insurance shall be effective August 20, 1918, although the condition in the policy required *Page 631 that either party attempting to cancel the same should give not less than thirty days' written notice to the other party, and that the same should be effective at noon on the date specified for cancelation in such notice. Under the tenth subdivision, it is provided that the policy shall remain in force until it is canceled in accordance with the terms of said paragraph H. Respondent concedes that the notice was not sufficient to cancel the policy on the date fixed in the notice, but contends that such cancelation would become effective after the expiration of thirty days from the service of the notice, and cites authorities involving fire insurance policies containing somewhat similar provisions, wherein it is held that although the time given in the notice was not that specified in the policy, still the notice would be held sufficient after the expiration of the time fixed by that instrument. No case is called to our attention involving the cancelation of a policy of this kind given under the provisions of the Workmen's Compensation Act. In view of the fact that such contracts are issued not only for the benefit of the assured, but for the benefit of its employees, who necessarily have no control over the contract, we are of the opinion that such contracts should be canceled only by a strict compliance with the conditions of the contract itself. (Sweaney Smith Co. v. St. Paul Fire Ins.Co., 35 Idaho 303, 206 P. 178; McDonald v. North River Ins.Co., 36 Idaho 638, 213 P. 349; Public Savings Ins. Co. v.Manning, 61 Ind. App. 239, 111 N.E. 945; Taylor v. InsuranceCo. of North America, 25 Okl. 92, 138 Am. St. 906,105 P. 354; American Fire Ins. Co. v. Brooks, 83 Md. 22, 34 A. 373;Bradshaw Bros. Co. v. Fire Ins. Co., 89 Minn. 334,94 N.W. 866.)
With reference to appellant being bound by paragraph 2, page 6 of her exhibit "A," which is a finding of the Industrial Accident Board as follows: "2. That on the 17th day of November, 1918, the Coeur d'Alene Antimony Mining Company, Limited, did not have its employees insured in accordance with the provisions of the Workmen's Compensation Act of the state of Idaho," it is sufficient to say that *Page 632 since all of the facts upon which either party may rely to support their respective contentions with reference to the validity of this attempted cancelation are admitted, the question as to whether such policy was in fact canceled by a compliance with its terms becomes one of law and not of fact. (Johnston v. A. C. White Lumber Co., 37 Idaho 617,217 P. 979.) It would therefore follow that this ruling of the Industrial Accident Board, even if it were upon an issue properly before it, and had reference to the attempted cancelation of this policy, being upon question of law, that is to say, upon the construction of a written contract, it is subject to review by the court, and we hold that this policy bad not been canceled.
The contention of respondent that the evidence fails to show that at the time of the accident and death of Hauter he was within the provisions of the Workmen's Compensation Act, but, on the contrary, affirmatively shows that he was not, because he was earning more than $2,400 per year, is equally untenable. It is conceded that the deceased had worked for this company only a short time prior to receiving the injury from which he died, thirteen days in all, he having commenced work on the 4th of November. It is true that he had applied for a position as superintendent of the company, and by a telephone conversation with the president of the company was instructed to go to the mine and begin work, but without any agreement as to how long he would be employed nor as to the rate of compensation. The secretary of the mining company does testify that they paid the superintendent an annual salary in excess of $2,400, but the deceased had not been employed as superintendent, nor had any specific rate of compensation been agreed upon. As said inKelley's Dependents v. Hoosac Lumber Co., 95 Vt. 50,113 A. 818:
"Employees excluded from the Workmen's Compensation Act under G. L. 5758, providing that the act does not apply to a workman whose remuneration exceeds $2,000 per year, in the absence of an agreement specified therein, are those working under a contract, a definite term of which is one *Page 633 full year or more, at a determined or determinable wage amounting to more than $2,000, and all other employees, regardless of the total amount earned, are within the act."
Considering respondent's third ground upon which it based its motion for nonsuit, that the cause of action is barred by the provisions of C. S., secs. 6243 and 6612: The first one relied upon is a part of article 4 of the Workmen's Compensation Act, entitled "Preliminary Procedure in Obtaining Compensation," and provides that no proceedings under this chapter for compensation shall be maintained unless a notice of the injury shall have been given to the employer as soon as practicable after the happening thereof, etc. In view of the very comprehensive language contained in the indorsement on the policy, wherein the respondent insurance company agrees to be in all things bound by and subject to the orders, findings, decisions or awards rendered against the assured for the payment of compensation, no other notice of the proceedings had before the board was necessary. C. S., sec. 6612, has no application whatever to a case of this kind.
For the reasons herein stated, the cause is reversed and remanded, with instructions to overrule the motion for nonsuit and proceed with the cause in a manner not inconsistent with the views here expressed. It is so ordered. Costs to appellants.
McCarthy, Dunn and Wm. E. Lee, JJ., concur.
(August 15, 1924.)