Connecticut Fire Ins. Co. v. Roberts

• Decision Date: 15 June 1928
• Citation: 226 Ky. 534,11 S.W.2d 148
• Parties: CONNECTICUT FIRE INS. CO. v. ROBERTS.
• Court: Kentucky Court of Appeals

11 S.W.2d 148

226 Ky. 534

CONNECTICUT FIRE INS. CO. v. ROBERTS.

Court of Appeals of Kentucky

June 15, 1928

As Modified on Denial of Rehearing December 14, 1928.

Appeal from Circuit Court, Shelby County.

Action by Omar Roberts against the Connecticut Fire Insurance Company. Judgment for plaintiff, and defendant appeals. Reversed.

Frank M. Drake, of Louisville, and Todd & Beard, of Shelbyville for appellant.

L. W Morris, of Frankfort, and R. F. Matthews and Gilbert &amp Pickett, all of Shelbyville, for appellee.

DRURY C.

Omar Roberts recovered a judgment against the Connecticut Fire Insurance Company for $3,000, to reverse which it has prosecuted this appeal.

On May 21, 1924, Cubbage & Herndon, as agents for the Connecticut Fire Insurance Company, took the application of Roberts for a policy of fire, lightning, and tornado insurance for $3,000 upon his dwelling. The policy issued thereon contained a provision that it should become void if the insured should then have or thereafter make or procure any other contract of insurance on the property.

The Connecticut Fire Insurance Company says, and it is true, that on January 10, 1925, Roberts made a contract of insurance with the Hartford Fire Insurance Company by which that company issued an additional $3,500 insurance upon this house and $400 on the contents. The property was destroyed by fire on January 11, 1926.

The Connecticut Fire Insurance Company, by answer, in addition to a traverse of the petition, made the defense we have indicated. Roberts by reply pleaded that the insurance taken out in the Hartford Fire Insurance Company was taken with the full knowledge, consent, and acquiescence of the Connecticut Fire Insurance Company; that he discussed the matter with the agents, Cubbage & Herndon, and discussed with them his reasons for taking it out in the Hartford; that the agents agreed, consented thereto, and acquiesced in the issual of a policy by the Hartford. In its rejoinder, the Connecticut denied this, and in a separate paragraph pleaded that the policy sued on contained this provision:

"It is hereby stipulated, and notice is hereby given and accepted, that no agent or employee of this company, or any person or persons, other than Webb M. Elliott, manager of the farm department at room 1601, Insurance Exchange, No. 175 W. Jackson boulevard, Chicago, Ill., shall have power or authority to waive or alter any of the terms or conditions of this policy or to make endorsements thereon."

The surrejoinder of Roberts was practically a repetition of his reply. Trial was had, and the court instructed the jury as follows:

"The jury should find for the defendant insurance company unless it believe from the evidence that after he took out the additional insurance with the Hartford Fire Insurance Company in the sum of $3,500, that the plaintiff told the agent of the defendant that he had taken out additional insurance with the Hartford Fire Insurance Company for the sum of $3,500, in which event the jury should find for the plaintiff in the sum of $3,000, the amount claimed in the petition." The Selection of the Jury.

The first ground contained in the Connecticut Insurance Company's motion for a new trial is this:

"The court erred to the prejudice of the defendant in refusing to give the defendant a statutory panel from which to draw the jury, although the defendant filed a written motion and asked for a statutory panel."

From the bill of exceptions, it appears that on the trial of the case this happened:

"The court thereupon called a panel of jurors, from which the jury was required to be selected, and it appearing and being a fact that there were only 20 jurors present for service (the other jurors of the panel having been theretofore excused or discharged by the court), the defendant, by counsel, moved the court to draw 18 men from a panel of 24 jurors to try this action, and further moved the court to complete the panel according to law for the selection of the jury for the trial of this case; which motion the court overruled, to which the defendant at the time excepted and still excepts; and defendant was required to select a jury, to try this cause, drawn from the 20 jurors present for service, and the jury was so drawn over the objection of defendant."

This trial was begun on Thursday, February 17, 1927, which was the tenth day of the February term of the Shelby circuit court. For service as petit jurors at that term of the court there should have been summoned not less than 30 nor more than 36 persons, whose names had been selected in the manner provided by section 2243 of the Kentucky Statutes. At the February term, the court should have selected from those summoned not less than 24, nor more than 30 jurors to constitute the regular panel of the petit jury, and the names of such as attend and are not excused should be entered of record. See section 2243 and section 2264, Kentucky Statutes. After those having satisfactory excuses have been let go, the court should in the manner provided by section 2247 make such additions to the list as will make the number of petit jurors not fewer than 24, nor more than 30. That constitutes the regular panel, and the order-book should show their names as constituting the regular petit jury panel. During the term vacancies occurring in the regular panel should be supplied in the same way. At the time this cause was called for trial, the regular panel had been reduced to 20. As more than 3 additional jurors were required to fill it, there was but one way to get them, and that was by drawing names from the jury wheel or drum, as is provided by section 2247.

After the names of these jurors have been entered of record, the clerk shall write their names (not less than 24, nor more than 30) on separate slips of paper as near the same size and appearance as may be, and these names (not less than 24, nor more than 30) he shall deposit in a suitable box with a sliding lid, and when a jury is wanted for the trial of a case these papers shall be well mixed in this box, and the names shall be drawn therefrom. See section 2265. For the trial of a civil case, as this was, the clerk draws 18 names, which he shall write as drawn, on two slips of paper. If any of those called are excused for cause, the clerk will draw from the box other names to supply the vacancies. Then the parties may make their peremptory challenges. See section 2267, Kentucky Statutes.

"It is the duty of the court to see that, when these lists are submitted to the litigants, none but qualified jurors are on them." L. & N. R. Co. v. King, 161 Ky. 324, 170 S.W. 938, and Shellman v. Louisville Ry. Co., 147 Ky. 526, 144 S.W. 1060. It is no answer to this to argue that 18 men can be drawn from a panel of 20, just as well as from a panel of not less than 24, nor more than 30. The Legislature thought otherwise, and its will we must obey. A litigant, if he does not waive this right, is entitled to have a list submitted to him of 18 qualified jurors, drawn from a panel of not less than 24, nor more than 30. He is entitled by the statute to have these 18 jurors so drawn. To have a jury selected as thus provided is a substantial right of a litigant, and, as the Connecticut Fire Insurance Company was compelled to go to trial before a jury not so selected, the error was prejudicial to its substantial rights.

Its next ground for a new trial is that the court erred in refusing to instruct the jury peremptorily to find for it at the close of plaintiff's evidence, and erred in overruling a similar motion made at the close of all the evidence. This contention is founded on the limitations of its agents' authority, which it had pleaded in its rejoinder. The insurance company here, being a corporation, necessarily must do business through agents. It has power to select such agents as it wishes and to give to them such power as it sees fit. It may classify its agents and give more power to some agents than to others, and we have, in recent cases, recognized this right. See Continental Ins. Co. v. Simpson, 220 Ky. 167, 294 S.W. 1048; Continental Ins. Co. v. Farlan, 219 Ky. 462, 293 S.W. 952; Commonwealth Life Ins. Co. v. Vanhoose, 208 Ky. 741, 271 S.W. 1062; Miles v. National Union Fire Ins. Co., 201 Ky. 179, 256 S.W. 7; Metropolitan Life Ins. Co. v. Davis, 219 Ky. 335, 292 S.W. 774; Staples v. Continental Ins. Co., 223 Ky. 842, 5 S.W.2d 265. If this limitation, which the defendant has pleaded here, were all there is contained in this policy, upon the subject of authority of Cubbage & Herndon, the answer would be easy; but at the close of this policy, and above the printed signatures of its president and its secretary, we find this:

"In witness whereof, this company has caused these presents to be signed by its president and attested by its secretary, in the city of Hartford and state of Connecticut; but this policy shall not be valid unless countersigned by the duly authorized agent of the company at Pleasureville, Kentucky."

Beneath the printed signatures of those officers, we find this:

"Countersigned by the agent at Pleasureville, Kentucky, this 21st day of May, 1924. Cubbage & Herndon, Agents."

The terms of this insurance contract were of the insurance company's own selection. It could put into this contract what it chose; it could leave out what it chose. It could refuse to issue the contract altogether, but, after it makes the contract, it must be construed most strongly against it. It had the right to confer on Cubbage & Herndon such authority as it chose. Thus it becomes a question for us to determine what effect this provision for countersigning had upon the powers of Cubbage & Herndon; that is, did it take them out of the ordinary local or...