Hansen & Rowland, Inc. v. C. F. Lytle Co.

Appellant urges that this court erred (1) as to the facts regarding the premium base, and (2) in failing to hold appellant entitled to interest under the doctrine of res judicata.

Apparently the facts concerning which we allegedly erred are comprised in the testimony of the Government engineer that he had no way of determining exactly the payroll amounts in question. This fact we recognized in our opinion. From this fact appellant concludes that it was established that remuneration of the insured’s employees were “not available to the company” (insurer), hence that the policy dictated application of the 50% of contract cost provision. We do not agree. Testimony of the Government’s witness at the rehearing that he could not then accurately break down certain of the payroll figures was not the equivalent of nor a substitute for appellant’s establishing that the remuneration was “not available” to the insurer within the meaning of the policy. Appellant’s argument in attempting to give effect to one provision of the policy, completely ignores the other provision limiting the policy coverage to a certain defined part of the Alaska highway. As we have heretofore observed, appellant’s…