Brown v. Hasty

• Decision Date: 28 February 1950
• Citation: 227 S.W.2d 916,312 Ky. 353
• Parties: BROWN v. HASTY.
• Court: Supreme Court of Kentucky

Page 916

227 S.W.2d 916

312 Ky. 353

BROWN v. HASTY.

Court of Appeals of Kentucky.

Feb. 28, 1950.

H. C. Kennedy, Somerset, for appellant.

Sandusky & Krueger, Somerset, for appellee.

MORRIS, Commissioner.

Appellant, defendant below, appeals from a judgment enjoining him from operating over a certain milk route, and to surrender to plaintiff a truck which was used in the business. Plaintiff's petition alleged that during 1947 Brown owned and operated motor vehicles in Pulaski and Lincoln Counties for the purpose of gathering milk and dairy products for delivery to the Stanford Creamery; that on June 5, 1948 defendant leased him the milk route. It was alleged that under the agreement plaintiff (Hasty) was to have use of the route for a period of five years, and that he had fully complied with the terms and conditions of the contract, but that in September appellant had taken over the route and truck. The prayer is for an order enjoining defendant, his agent and servants, from operating over the route for a period of 5 years from June 5, 1948, and from using plaintiff's truck in the operation. The written memorandum in pertinent parts reads: 'It is further agreed that insurance is to be carried on the truck which is to be used for hauling the milk, and to be paid by said Hasty. * * * If said Hasty discontinues said milk route within the term of the above lease, this route falls back to said Brown. If the said Hasty fails to live up to the terms of this contract before the lease expires or said truck is paid for, the truck is to go back to said Brown.'

Brown answered affirmatively alleging that Hasty had failed and refused to secure and carry insurance on the truck, and that prior to the filing of plaintiff's action the parties had mutually rescinded the contract. A reply joined issue; proof was taken by way of deposition and upon submission the court adjudged that Brown and employees be enjoined from operating over the milk route for a period of five years from June 5, 1948, and enjoined defendant from using or interfering with plaintiff's use of the truck and ordered defendant to surrender possession of both route and truck to the plaintiff, 'and in the absence of so doing the sheriff is directed to place the plaintiff in possession thereof.' Appeal is prosecuted from that order.

The solution of the problem depends upon proof as to whether the contract was breached, or whether the contract was rescinded by the parties. The evidence as to the failure of plaintiff to obtain insurance is that when the parties went to the home of the agent for the Kentucky Farm Bureau Mutual Insurance Company, where the written contract was drawn up, plaintiff and defendant made application in defendant's name for additional coverage for collision, fire and theft on the truck; it appeared that the defendant, Brown, already had a liability policy with the same company on...