Continental Ins. Co. v. Riggs

• Decision Date: 14 March 1939
• Citation: 277 Ky. 361
• Court: United States State Supreme Court — District of Kentucky
• Parties: Continental Ins. Co. v. Riggs. Riggs v. Springfield Fire & Marine Ins. Co.

Page 361

277 Ky. 361

Continental Ins. Co. v. Riggs.

Riggs v. Springfield Fire & Marine Ins. Co.

Court of Appeals of Kentucky.

March 14, 1939.

1. Action. — An appeal would not be dismissed on ground that it had not been filed within limits prescribed by Declaratory Judgment Act, where there was no intimation that either of parties had considered action as one brought under the act (Civil Code of Practice, secs. 639a — 1 to 639a — 12).

2. Action. — The Declaratory Judgment Act was enacted to make courts more serviceable and is to be liberally interpreted and administered, and should not be used as a technical bar to the administration of justice (Civil Code of Practice, secs. 639a — 1 to 639a — 12).

3. Insurance. — Insurance taken out on property without consent or knowledge of insured does not violate clause in insurance policy making other insurance a ground of forfeiture of policy.

4. Insurance. — An insured after destruction of insured property by fire cannot accept a fire policy procured without his knowledge or consent, and which he had had no intention of accepting prior to fire, unless he accepts all of provisions thereof.

5. Insurance. — An insured after fire loss may ratify act of another in procuring policy for insured without his knowledge or authority, but if he does so, he adopts entire policy.

6. Insurance. — A fire policy procured by insured's son for insured without his consent, and of which he had no knowledge until after fire, did not constitute "other insurance" within meaning of fire policy procured by insured for same property providing that policy should be void if insured had, or should thereafter procure, any other insurance, and did not invalidate insured's policy.

7. Insurance. — An insurer under a fire policy procured by insured became indebted to him upon occurrence of fire, and its liability was not affected by insured's subsequent unsuccessful attempt to recover on policy procured for him by his son, of which he had no knowledge until after fire.

8. Insurance. — The provision of fire policy procured for insured by his son that insurer should not be liable for loss occurring while there was any other insurance covering property barred recovery thereon, where insured had himself obtained fire policy covering property prior to fire.

Appeal from Shelby Circuit Court.

GORDON, LAURENT, OGDEN & GALPHIN and TODD & BEARD for Continental Ins. Co.

GILBERT & DAVIS for H.E. Riggs.

ROBERT F. MATTHEWS for Springfield Fire & Marine Ins. Co.

Before Chas. C. Marshall, Judge.

OPINION OF THE COURT BY JUDGE REES.

Reversing.

H.E. Riggs brought this action against the Continental Insurance Company and the Springfield Fire & Marine Insurance Company to recover the amount of two fire insurance policies, one with each company. By agreement, the action was transferred from the ordinary to the equity docket. Numerous pleadings were filed, and the case was submitted to the chancellor upon an agreed stipulation of the facts. The only proof heard was the testimony of Riggs concerning the value of the personal property destroyed by the fire. The substance of the stipulation is as follows:

(1) On August 22, 1936, a policy was issued by the Continental Insurance Company in the name of H.E. Riggs, but procured by his son, Everett Riggs, in the sum of $1,200 on the home and $300 on the household furnishings of H.E. Riggs. The plaintiff did not know until after the fire that this policy had been issued, and he had not authorized his son to obtain the policy for him. The policy was issued by the Armstrong Agency. (2) On December 30, 1936, the plaintiff personally obtained from the Springfield Fire & Marine Insurance Company a policy on his household furnishings. At the time he obtained this policy he did not know of the policy already issued upon his home and household furnishings by the Continental Insurance Company. The policy obtained by plaintiff was issued by Charles Connell, agent of the Springfield Fire & Marine Insurance Company. Connell was not an agent of the Continental Insurance Company, and was not connected with the Armstrong Agency which was also an agent of the Springfield Fire & Marine Insurance Company. (3) After his property was destroyed by fire, and, upon learning of the Continental Insurance Company policy, plaintiff made claim thereon, and, upon the company's denial of liability, he brought this action to recover on the policy. (4) The value of the house was at least the sum of $1,200. The value of the personal property was disputed, and it was agreed that testimony should be taken upon this issue alone. (5) In the event judgment was rendered against the Continental Insurance Company, it was entitled to have deducted from such judgment the sum of $64.80, the unmatured and unpaid balance of the premium for the remainder of the term of the policy, and if the plaintiff was denied recovery the note was to be declared null and void.

The case having been submitted, the chancellor rendered judgment dismissing the petition as to the Springfield Fire & Marine Insurance Company and adjudging that the plaintiff recover of the Continental Insurance Company the sum of $1,405.20, it appearing that he had salvaged $30 worth of household furnishings. The Continental Insurance Company has appealed from so much of the judgment as allowed plaintiff recovery against it, and the plaintiff has appealed from that part of the judgment dismissing the petition as to the Springfield Fire & Marine Insurance Company. The appeal of the Continental Insurance Company was filed December 21, 1937. H.E. Riggs filed a copy of the judgment in the office of the Clerk of the Court of Appeals July 11, 1938, and asked that the Clerk grant an appeal and issue summons against the Springfield Fire & Marine Insurance Company. He later filed a motion to be permitted to prosecute the appeal on the record theretofore filed by the Continental Insurance Company, and the motion was sustained.

A motion filed by the appellee, Springfield Fire & Marine Insurance Company, to dismiss the appeal on the ground that the appellant, Riggs, failed to file his appeal within the sixty-day limit, as prescribed by the Declaratory Judgment Act, Civil Code of Practice, sections 639a — 1 to 639a — 12, has been passed to the merits. This motion is overruled due to the fact that there is nowhere any intimation in the record that either of the opposing parties in the lower court considered the action as one brought under the Declaratory Judgment Act, and the case was not so practiced. The purpose of the act is to make courts more serviceable in the settlement of controversies and afford relief from uncertainty and insecurity with respect to rights. It is to be liberally interpreted and administered, and should not be used as a technical bar to the administration of justice.

Both policies of insurance were filed as exhibits. The defense of each company was based upon the following clause in their respective policies. The Continental policy contains the following:

"Any other or additional insurance on the property covered by this Policy, whether valid or not, is prohibited, unless written consent by this Company is endorsed hereon, and this Company shall not be liable for any loss occurring while there is any other insurance, whether valid or not, covering the property insured, or any part thereof, not consented to by this Company by endorsement on this Policy."

The Springfield Fire & Marine Insurance Company policy contains this clause:

"This entire policy, unless otherwise provided by agreement indorsed hereon or added hereto, shall be void if the insured now has or shall hereafter make or procure any other contract of insurance, whether valid or not, on property covered in whole or in part by this policy."

The Continental Insurance Company insists that when the plaintiff brought suit on its policy and ratified the act of his son in procuring the insurance, he adopted the policy as it was written, including the foregoing clause, and the policy therefore was invalidated when he took out...