Baldwin v. Phoenix Ins. Co.

• Decision Date: 07 December 1899
• Citation: 107 Ky. 356,54 S.W. 13
• Parties: BALDWIN v. PH×NIX INS. CO. [1]
• Court: Kentucky Court of Appeals

54 S.W. 13

107 Ky. 356

BALDWIN v. PH×NIX INS. CO. ^[1]

Court of Appeals of Kentucky.

December 7, 1899

Appeal from circuit court, Clark county.

"To be officially reported."

Action by W. T. Baldwin against the Ph nix Insurance Company to enforce a contract of insurance. Judgment for defendant, and plaintiff appeals. Reversed.

J. M Benton, for appellant.

Beckner & Jouett, for appellee.

PAYNTER J.

The question involved in this case is whether a parol agreement to renew an existing policy of insurance when it shall expire is valid. The averments of the petition which we deem necessary to consider are substantially as follows: That from September 1, 1894, to September 1, 1895, the appellant held a policy of insurance in the appellee company, for which he paid an annual premium of $20; that the appellee insured him against loss by fire to the amount of $800 on a stock of leaf and manufactured tobacco, and on September 1, 1895, the appellee, through its agent, George W. Strother, issued to him a renewal policy, which extended to September 1, 1896 for which he paid a like premium as for the first policy that on April 7, 1896, the appellee gave him written permission to remove the tobacco covered by the policy to another building, near the one in which the tobacco was originally stored; that he removed the tobacco to the building where he was permitted to do so by the appellee; that Strother is and has been continuously for several years in charge of the appellee's business at Winchester, and had full authority to make contracts of insurance, and to issue policies and renewals of same; that on April 7, 1896, the appellee, through Strother, its agent, agreed with the appellant that, in consideration of the usual annual premium paid by him for the policy of insurance, to wit, $20, his policy was to be renewed upon its expiration, September 1, 1896, for a year, upon the same terms and conditions as contained in the existing policy; that for several years prior thereto appellant had been insuring his property with the appellee and other companies represented by Strother, all of which insurance had been effected through Strother as agent; that Strother, during all that time, had never required of appellant payment of the premium at the time the policies were issued, but made a charge of premiums against him on his books, and afterwards, at such times as he desired to collect the premiums from him, would present an account for same, and receive payment; that because of that course of dealing upon the part of Strother he had not, by September 1, 1896, paid the premium for the renewal of the policy; that he was able and willing to pay the premium on the day that the renewal should have been issued, and every day thereafter, upon the demand of Strother; that Strother failed to issue a renewal policy as he agreed to do; that on the night of November 2, 1896, his stock of tobacco, which was insured, was destroyed by fire, resulting in his loss in the sum of $469; that he relied upon Strother's agreement to renew the policy; that he did not know that Strother had failed to renew it for another year until after the fire had occurred; that he then tendered the premium of $20, and Strother refused to accept it.

These facts are all admitted by the demurrer to the petition, and are assumed to be true. Counsel for appellant and appellee concede the rule of law to be that parol contracts of insurance are obligatory. This we understand to be the general doctrine. It is insisted that the contract was not completed, inasmuch as the premium was not paid or credit therefor given. The renewal was to be issued in consideration of $20. So, the question is whether the premium should have been tendered on the day the renewal policy should have been issued, in order to make the contract binding. No time was fixed for the payment of the premium, and, in the absence of such a contract, the premium would have to be paid on the day the renewal policy should have been issued under...