its complete failure to act when notified of policy discontinuance, it, in effect, avoided two years of insurance risk for workmen's compensation covering the plaintiff's employees and is now demanding the premium for that unassumed risk.
Every party seeking damages in a court of law is, in duty, bound to diminish or eliminate all damages possible. Here the defendant could and should have brought to the plaintiff's attention that it may as well have continued its workmen's compensation for two more years with the defendant, because it would be paying for the protection anyhow. In failing to do this, the defendant has failed in an equitable duty and it would be estopped from collecting any such premiums, if there had been any obligation on the part of the plaintiff to pay for two additional years. Commodity Credit Corp. v. Rosenberg Bros. & Co., 243 F.2d 504 (9th Cir.), certiorari denied 355 U.S. 837, 78 S. Ct. 62, 2 L. Ed. 2d 48; United States v. Brookridge Farm, 111 F.2d 461 (10th Cir.).
The method by which the printed obligations in the main portion of the policy offset the typed portion in the foremost part of the policy is noted for its indication of an added obligation on the plaintiff to renew the policy at the end of the first year and at the end of the second year and for failure to do so, to stand bound for premium payment nevertheless, when a simple statement on the typed portion in front should have the expiration date as November 26, 1961 (not November 26, 1959).
It is within the power of the courts to interpret and read insurance contracts so as to reflect the agreements fairly and legally entered into by the insurance company with policy holders, where through mutual mistake or mistake on the part of one and the inequitable conduct on the part of the other, the agreement actually entered into does not express the real contract between them. Kansas City Life Insurance Co. v. Cox, 104 F.2d 321 (6th Cir.1939).
I am impelled to conclude, therefore, that the ambiguity existing within the terms of the policy, together with the conduct of the defendant, justifies the conclusion that the policy terminated on November 26, 1959, and that said policy was a one-year policy so that defendant's claim for premium liability for an additional period of two years is unsupportable under the facts and the law.
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