Continental Insurance Company v. Turner

• Decision Date: 17 January 1928
• Citation: 222 Ky. 608
• Parties: Continental Insurance Company v. Turner.
• Court: United States State Supreme Court — District of Kentucky

222 Ky. 608

Continental Insurance Company v. Turner.

Court of Appeals of Kentucky.

Decided January 17, 1928.

1. Insurance. — In absence of any knowledge of limitation on local agent's authority, insurance company establishing local agency must be held responsible to parties with whom they transact business for acts and declarations of agent within apparent scope of his employment.

2. Insurance. — In action on fire insurance policy, evidence held, to show that agent writing policy on farm property was local agent of insurer, and not mere soliciting agent.

3. Insurance. — No limitation on local agent's authority being communicated to insured, he had right to rely on agent's statement when he reported fire to agent that it was not necessary for insured to furnish proofs of loss.

4. Insurance. — In action on fire insurance policy, question whether insurer through its local agent waived requirement of proofs of loss held for jury.

5. Insurance. — In action on fire insurance policy, instruction that jury should find for defendant insurer, unless they believed from evidence that after destruction of property by fire insured reported fire to local agent and asked him if it was necessary to do anything else, and agent stated that it was not necessary to furnish proof of loss, held proper.

Appeal from Graves Circuit Court.

GORDON & LAURENT, T.M. GALPHIN, JR., and J.E. WARREN for appellant.

HOLIFIELD, GARDNER & McDONALD for appellee.

OPINION OF THE COURT BY COMMISSIONER HOBSON.

Affirming.

The Continental Insurance Corporation issued to Charles O. Turner a policy insuring his dwelling house in the sum of $400, and his stock barn in the sum of $200, for one year from December 3, 1925. The property burned on December 31, 1925, and this action was brought by Turner to recover on the policy. The company, by its answer, pleaded that the policy contained the following provisions:

"In case of loss the assured shall within fifteen days give this company, at its office in Chicago or New York, written notice thereof, and shall within sixty days from date of the loss render to its office aforesaid a particular account of such loss, signed and sworn to by the assured only (except in case of death, and then by the legal representatives), stating the date and circumstances of same, the exact nature of the title and interest of the assured, and of all others in the property, by whom and for what purpose any building herein described was occupied at the time of the loss, all incumbrances on the property, and all other insurance, whether valid or not, covering any portion of said property; and shall furnish this company an itemized statement of personal property, and plans and specifications, and an itemized estimate of the buildings, by some reliable and competent builder, and shall also furnish the certificate of two disinterested neighbors and of the nearest magistrate, certifying their belief that the statements are true, and that the assured has without fraud sustained the amount of loss set forth in said proofs. . . . All claims for any loss or damage shall be forfeited by failure to furnish proofs of such loss or damage within the time and in the manner above provided."

It alleged that it did not extend the time for filing proofs of loss and that the plaintiff failed to furnish it, within 60 days from the date of the fire, any proofs of loss. The plaintiff replied, in substance, that the defendant had waived the requirement as to proofs of loss; that on the next day after the fire he went to the local agent of the defendant in Mayfield and notified him of the fire and asked him if it was necessary for him to do anything else in order to entitle him to collect from the defendant under his policy the loss sustained, and the agent notified him he had done all that was necessary for him to do and that he would report to his principal and in a few days an adjuster would visit him and make a settlement with him, and that after misleading him in this way the defendant, after 60 days, denied all liability under the policy. The case came on for trial before a jury, who found for the plaintiff; the court refused a new trial; the defendant appeals.

Practically the only question made on the appeal is that the court should have instructed the jury peremptorily to find for the defendant under the evidence. Turner's testimony, put in narrative form, is in these words:

"Emerson, the local agent of the company, delivered the policy and collected the premium. On the next day after the fire I came and reported it to him. He said nothing else was necessary for me to do; that the company didn't require any more to be done. He told me two or three times that there was not anything necessary to do. He said he would notify the company — the company would send out an adjuster. Every time he told me it would not be necessary to file proof of loss. This ran along for more than 60 days, and then I received a letter from the company stating that they denied all liability under the policy as I had furnished no proof of loss."

The local agent Emerson testified in chief as a witness for the plaintiff substantially as Turner. On cross-examination he did not make his statements quite as broad as Turner, but nowhere denied that Turner asked him if it was necessary for him to do anything further and he told him that it was not necessary to do anything. Under this evidence the circuit court gave the jury this instruction:

"The court instructs the jury that they will find for the defendant, Continental Insurance Company, unless they believe from the evidence that, after the destruction of the property herein by fire, the plaintiff, Turner, reported and notified Emerson, the agent of the defendant, Continental Insurance Company, within 60 days, that said property had been destroyed, and further asked said agent if he was required to do anything else in order to perfect his claim against the defendant, Continental Insurance Company, and if he was required to file a statement with said company as to said loss; and you further believe from the...