A. Downs & Bro. v. Firemen's Insurance Co.

• Decision Date: 19 December 1924
• Citation: 206 Ky. 316
• Parties: A. Downs & Brother, et al. v. Firemen's Insurance Company of Newark, New Jersey.
• Court: Kentucky Court of Appeals

206 Ky. 316

A. Downs & Brother, et al. v. Firemen's Insurance Company of Newark, New Jersey.

Court of Appeals of Kentucky.

Decided December 19, 1924.

Appeal from Calloway Circuit Court.

WEAKS & PHILLIPS for appellants.

COLEMAN & LANCASTER and ROBERT G. GORDON (BRUCE, BULLITT & GORDON) for appellee.

OPINION OF THE COURT BY DRURY, COMMISSIONER — Affirming.

Appellants, Abiath Downs and G. W. Downs, tobacconists, buying and selling tobacco as A. Downs & Brother, sought to recover $1,000.00 of appellee upon an alleged contract of insurance. The jury found for the appellee.

Appellants were in the business of buying, storing and selling tobacco. They carried fire insurance on their tobacco through two different fire insurance agencies in Murray, Kentucky. The major portion of their insurance was written through the agency of McElrath & Frazee, who were not agents for appellee company, and the remainder of their insurance was written with M. D. Holton, who was agent of appellee company, as well as a number of other fire insurance companies.

For many years they did no business at all with Holton, but, beginning in December, 1921, and continuing until May, 1922, they took a number of policies with Mr. Holton. Practically all of those policies were taken for a period of five months. Several of these policies were canceled by the insured before expiration, and the remaining policies continued in force until their expiration, and no one of these policies was ever renewed. On April 21, 1922, Abiath Downs procured a policy in appellee company from Mr. Holton for $1,000.00 for a term of five months. That policy expired on September 21, 1922. The tobacco covered by that policy was destroyed by fire on September 28, 1922.

Several months after the fire, this suit was brought, charging specifically that on the 21st of April, 1922, when the policy of appellee was issued, it was agreed between appellants and appellee, through its agent, Holton, that upon the expiration of said policy, to-wit, on September 21, 1922, appellee would renew the policy for a like term and for the same premium, and that appellee would not allow appellant's insurance to lapse. Whether such an agreement was made was and is the only issue in this case.

Three grounds for reversal are urged. First, that the instructions were erroneous. Second, that the court erred in excluding competent testimony offered by appellants. Third, that the verdict was against the evidence.

An examination of the grounds for a new trial discloses the fact that there is no mention at all of any error in the instructions. The only possible ground under which appellants might contend that it would be proper to consider an error in instructions is the blanket assignment "because of error of law occurring at the trial, which was excepted to by the plaintiff at the time." It has been held repeatedly by this court that this general statement in a motion and grounds for new trial is not sufficient to call into question either the correctness of the instructions or the correctness of the rulings of the court on matters of evidence. In fact, this court said in the case of L. & N. R. R. Co. v. Woodford, et al., 152 Ky. 398, 153 S. W. 722:

"Furthermore, a blanket assignment `of error of law occurring at the trial and excepted to at the time,' as we have in the seventh and last ground assigned for new trial in the case at bar, is not sufficiently specific to raise any question upon appeal. Meaux v. Meaux, 81 Ky. 475; L. & N. R. R. Co. v. McCoy, 81 Ky. 403; American Credit-Indemnity Co. v. National...