Fidelity-Phenix Fire Ins. Co. of N. Y. v. Hamilton
| Decision Date | 11 November 1960 |
| Docket Number | FIDELITY-PHENIX |
| Citation | 340 S.W.2d 218 |
| Parties | FIRE INSURANCE COMPANY OF NEW YORK, Appellant, v. Chester HAMILTON, Appellee. |
| Court | United States State Supreme Court — District of Kentucky |
Farland Robbins, Robbins & Cross, Mayfield, Percy Brown, Jr., Ogden, Brown, Robertson, & Marshall, Louisville, for appellant.
L. M. Tipton Reed, Martin, Neely & Reed, Clyde Burnett, Mayfield, for appellee.
Chester Hamilton's tobacco barn was destroyed by fire. He recovered from Fidelity-Phenix Fire Insurance Company for losses resulting from the fire. The insurance company has moved for an appeal under KRS 21.080.
The insurance policy provided as follows:
'Firing of Tobacco Clause (This Clause void as to Windstorm Insurance): It is a condition of this insurance that while tobacco is being 'Fired' and for five (5) days thereafter, the liability of this Company against fire is suspended on all items of this policy coverning in, on or within eighty (80) feet of the building in which open fire is used for curing of dark tobacco, unless permission for 'firing' of tobacco is granted by special endorsement hereon and additional premium charged therefor.'
For defense the insurance company pleaded suspension of liability under the foregoing provision of the policy and undertook to prove facts necessary to substantiate the defense. The case was tried by a jury. The trial was concluded in the late afternoon and the court adjourned until the following morning without submitting the case. During the recess the insurance company received information that Hamilton had gone first to certain lawyers who declined to bring an action on the policy when Hamilton told them that fire had been in the barn during the period mentioned in the suspension provision. The company was also informed that these lawyers had written to Hamilton explaining to him in detail that he could not successfully maintain an action because of the suspension provision of the policy.
On the following morning the insurance company moved to reopen the case and proposed to introduce these lawyers as witnesses for the purpose of showing that Hamilton had told them about fire being in the barn during the period mentioned in the suspension provision and for the further purpose of showing that they had informed Hamilton of his legal position.
Hamilton contended that his communication with these lawyers was privileged and he therefore objected. The trial court concluded that the communication was privileged and declined to reopen the case.
The insurance company insists that the communication was not privileged and that the trial court abused its discretion in declining to reopen the case for introduction of the lawyers' testimony. Upon this ground alone the insurance company seeks a reversal.
KRS 421.210(4), formerly Civil Code 606(4), provides for the privilege as between attorney and client as did the common law. In construing the legislative enactment this Court in the case of Cummings v. Commonwealth, 221 Ky. 301, 298 S.W. 943, 947, set forth the general rule and the rule of application. There we said:
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...does not directly address it. The district court cites a Kentucky case for this proposition. See Fidelity-Phenix Fire Insurance Company of New York v. Hamilton, 340 S.W.2d 218 (Ky.App.1960), where the court permitted an attorney to testify regarding fraudulent statements made by a potential......
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