American Cent. Ins. Co. v. Hardin

• Decision Date: 09 May 1912
• Citation: 148 Ky. 246,146 S.W. 418
• Parties: AMERICAN CENT. INS. CO. v. HARDIN.
• Court: Kentucky Court of Appeals

146 S.W. 418

148 Ky. 246

AMERICAN CENT. INS. CO. v. HARDIN.

Court of Appeals of Kentucky.

May 9, 1912

Appeal from Circuit Court, Laurel County.

Action by Sam C. Hardin against the American Central Insurance Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Clay &amp Boreing, of London, for appellant.

Hazlewood & Johnson, of London, for appellee.

CARROLL J.

This action was brought by appellee against appellant company upon a parol contract of insurance, alleged to have been made with an agent of the company, by which it was agreed that the property of appellee should be insured for one year from October 22, 1910. The property was destroyed by fire in November, 1910, and, the appellant company declining to pay the loss, the appellee brought suit to recover the amount of insurance-$600-and there was a judgment in his favor.

It appears from the evidence that in October, 1908, the appellee procured a policy of insurance for one year for $600 in the appellant company from its agent, T. J. Moren. At the expiration of the policy in October, 1909, the agent following his usual custom, and without any further request sent to appellee another policy in the same company for a like amount on the property for the year ending in October, 1910. It seems that appellee did not pay the premium on this policy until some time in June, 1910, and he testifies that, when he paid the premium, the following conversation took place between himself and the agent: "I says: 'Now, Mr. Moren, I don't want my policy to lapse. I don't want to run out of insurance. I want to keep my property insured.' "And,' I says, 'I want you to do just like you did this time and the last time.' And he says, 'You need have no fear.' That they wouldn't let my policy to lapse. I then didn't give the matter any further attention." The agent admits having issued the policy in 1908, and the one in 1909, but denies that he had the conversation testified to by appellee, or that there was ever any agreement or understanding on his part that the policy that expired in October, 1910, would be renewed.

It was further shown in the evidence in behalf of appellee that it was the custom of Moren and other agents in London, Ky. where Moren did business, to keep up the insurance of their customers by the issual of new policies when the old ones expired, without any request on the part of the patrons to do so; and appellee testified that he relied on this established custom of Moren, as well as upon the parol agreement made, and believed that a policy the same as he had been carrying had been issued to him for one year from October, 1910.

The court instructed the jury, in substance, that if they believed it was the custom of the defendant company, after once securing patrons, to issue renewals of its policies upon their expiration, and without notice to the policy holders and charge the premiums to said policy holders, and thereafter collect same, and if they further believed that appellee about June, 1910, entered into an agreement with defendant's agent, whereby, at the expiration of the policy he then held, the agent would renew the same by issuing another like policy, they should find for appellee the amount sued for, $600, less $14.40, the premium due. This instruction is criticised upon the ground that it allowed a recovery in behalf of appellee if the jury believed it was customary to issue policies as indicated in the instruction. But the instruction did not authorize the jury to find a verdict in behalf of appellee if they believed the custom testified to existed. The...