Dodds v. Maryland Casualty Co.

• Decision Date: 06 October 1915
• Citation: 166 Ky. 70,178 S.W. 1134
• Parties: DODDS v. MARYLAND CASUALTY CO.
• Court: Kentucky Court of Appeals

178 S.W. 1134

166 Ky. 70

DODDS v. MARYLAND CASUALTY CO.

Court of Appeals of Kentucky.

October 6, 1915

Appeal from Circuit Court, McCracken County.

Action by S.W. Dodds against the Maryland Casualty Company. From a judgment on a verdict directed for defendant, and from the refusal of a new trial, plaintiff appeals. Affirmed.

Berry &amp Grassham, of Paducah, for appellant.

Wheeler & Hughes, of Paducah, for appellee.

SETTLE J.

This action was brought by appellant to recover of appellee $225.18 for repairs made by him, as alleged, upon an automobile owned by one Herman Friedman, at the request of appellee and upon its undertaking to pay therefor. At the conclusion of all the evidence the trial court, on appellee's motion, peremptorily instructed the jury to return a verdict for it, which was done. Appellant complains of the judgment entered upon the verdict and of the refusal of the court to grant him a new trial; hence this appeal.

The facts were that Friedman, a resident of Paducah, owned an automobile upon which he had obtained an indemnity policy from the appellee, by the terms of which it agreed, on certain conditions expressed in the policy, to reimburse him for any injury and damages sustained to the automobile by accident. In the early part of 1914 an accident occurred to the machine from its running into another machine, and the injuries thereby caused Friedman's machine were repaired by appellant at his garage, the cost of which amounted to $225.18. It is the contention of appellant that the contract under which the machine was repaired was made by him with the appellee through its alleged agent, Coleman. The answer of appellee denied liability for the cost of the repairs made upon the machine; also denied that it contracted to pay same or that Coleman, as its agent, was authorized to make such contract.

In addition to the appellant himself, his employé McDaniel, who did the work in repairing the machine, and one Joe Laevison a relative of Friedman's, testified to conversations between Coleman and appellant, and Coleman and McDaniel, at appellant's garage, in which they claimed Coleman directed appellant and McDaniel to repair the machine and "to put it in as good shape as when it was new, or as before the accident"; that he wanted a No. 1 job, and "if he [Friedman] don't get a good job it won't be our fault."

Coleman upon being introduced by appellee, testified that no such conversation as that related by appellant and his witnesses occurred. He admitted, however, that he went to the garage to inspect the automobile in its wrecked condition, claiming that it was his purpose to ascertain the nature and extent of the injuries and damages, that he might make a report to the appellee company of the matter. He further testified that he had acted for a year as appellee's claim agent, and had occasionally received applications for insurance and collected premiums, but his only actual duties were the investigating of claims for injuries from accidents to automobiles on which appellee had issued policies, and that it was no part of his duty or agency to adjust or pay claims for damages asserted against appellee for injuries sustained to automobiles by accident.

Weil who was in company with Coleman at the time the conversations with appellant and McDaniel occurred, corroborated Coleman as to there having been no direction from him to the parties named to repair the automobile, and as to his not having made any contract to that effect. Auber Smith, who is and was, at the time referred to, appellee's local agent at Paducah, testified that Coleman had no authority to enter into a contract with a...