Fidelity & Casualty Co. of N. Y. v. Cooper, &C.

• Decision Date: 15 March 1910
• Citation: 137 Ky. 544
• Parties: Fidelity & Casualty Co. of N. Y. v. Cooper, &c.
• Court: Kentucky Court of Appeals

137 Ky. 544

Fidelity & Casualty Co. of N. Y. v. Cooper, &c.

Court of Appeals of Kentucky.

March 15, 1910.

Appeal from Knox Circuit Court.

H. C. FAULKNER, Judge.

Judgment for plaintiffs, defendant appeals. — Affirmed.

B. B. GOLDEN, JAS. D. BLACK, PITZER D. BLACK and U. R. BLACK for appellant.

J. M. ROBBINS for appellee.

OPINION OF THE COURT BY JUDGE HOBSON — Affirming.

The Fidelity & Casualty Company of New York issued to W. F. Cooper an accident policy, which, so far as material here, is as follows:

"The Fidelity & Casualty Company of New York in consideration of the premium and of the statements which are set forth hereon in the schedule of warranties, and which the assured makes and warrants to be true by the acceptance of this policy, does hereby insure the person named in statement A of said schedule (and herein called the assured), in the principal sum of five thousand dollars, * * * against bodily injuries sustained by the assured during the term of twelve months from noon, standard time, of the day this policy is dated, through external, violent, and accidental means, and resulting directly, independently and exclusively of all other causes, in * * * death. * * *

"Art. 6. This policy does not cover any injury, fatal or nonfatal (1) received by the assured while or in consequence of being or having been under the influence of or affected by intoxicants; * * * (2) resulting directly or indirectly, wholly or partly from intoxicants. * * *

"Art. 8. Written notice of any accident on account of which a claim may be made must be given to the company as soon as may be reasonably possible, together with full particulars thereof, and the full name and address of the assured. Like notice of bodily injury or death on account of which a claim is to be made must be given to the company as soon as may be reasonably possible after the occurrence of the accident causing such bodily injury or death. Affirmative proofs of death or of dismemberment or of loss of sight or of duration of disability must be filed with the company in writing within two months from the time of death or of dismemberment or of loss of sight or the termination of the period of disability for which a claim is made. Claims not brought as required by this policy shall be forfeited to the company."

During the term of the policy Cooper died of pneumonia, and this suit was brought by the beneficiaries to recover upon it upon the ground that the pneumonia was caused by an injury of the lungs received in an accident. On the trial of the case before a jury there was a verdict and judgment for the plaintiffs, and the company appeals.

The facts shown by the plaintiffs are these: Cooper was a passenger conductor running between Corbin, Ky., and Norton, Va. He was in good health. On his arrival at Norton about 9:30 p. m. on the night of January 25, 1908, it was his duty to go immediately to the yard office and register his train. It was a dark rainy night. The turntable pit was near the track, and as he went from his train to the office he fell into the pit, which was about four feet deep. In the fall his chin and hands were badly cut and his chest and lungs were bruised. He lived at Corbin. On the next night he was restless and slept but little. The following morning he undertook to take his train back to Norton, but was unable to make the return trip, and was carried home sick. On reaching home he went to bed with violent pains in his chest and died of pneumonia three or four days later. Poultices were applied to his chest to relieve the inflammation. There was a blue spot something below the right nipple about 2½ or 3 inches in diameter. The doctor who treated him testified that he died of contusion pneumonia; the pneumonia setting up by reason of the injury to the lung from the hard fall against the bottom of the pit. There was no contrary medical testimony. Although two physicians treated him, only one testified at the trial. The other physician, though summoned as a witness, was not introduced by either party. The defendant introduced proof showing that the deceased said that he fell over a hydrant; but the hydrant was about six feet from the turntable pit, and if he fell over the hydrant it is quite possible that this was the cause of his falling into the pit. The defendant also introduced some proof to the effect that the deceased was drunk. The weight of the evidence is that he was entirely sober.

The first question made on the appeal is that the plaintiffs did not furnish the company proofs of loss as required by the policy. On this matter the facts are these: The insurance had been obtained at Corbin from W. C. Killinger, who represented the company there as a solicitor of insurance. He took the application and was the only agent of the company that the insured had any dealings with. Killinger forwarded the application to the home office, and the policy was issued there. After Cooper's death, the beneficiaries applied to Killinger for the necessary blanks to make out their claim. He gave them what he called a "death certificate," telling them to fill it out and bring it to him, and he would send it to the company. This they did, and returned the paper to Killinger, who sent it to the company. This paper stated the facts substantially as we have given them, but was not sworn to. Afterwards Killinger told the widow to write a letter to the company stating, in effect, the same facts, and giving the names of the persons who knew the facts as to the accident, and the names of the doctors who had treated the assured, and the undertaker who had buried him. This she did; the paper being signed by her but not sworn to. The company made no objection to either of these papers because they were not sworn to, and Killinger told the beneficiaries that they were all that was necessary. The company, upon the receipt of the first paper, sent an attorney to investigate the claim, and, upon his investigation, refused to pay, denying all liability. The notice of the injury and death of the deceased was given in a reasonable time; but it is insisted that no sworn proofs of loss were furnished the company, and that under the policy no action can be maintained. The reason that no sworn proofs were given was that no blanks for such proofs were given the plaintiffs, and Killinger informed them that the proofs furnished were all that was necessary. The policy, it will be observed, does not specify that the proofs must be sworn to. The facts were all within the personal knowledge of Killinger, the agent, and it was within the apparent scope of his power to waive proofs being sworn to. Under a long line of authorities in this state, the agent who takes the application for the insurance, and is the only person with whom the parties deal, is the agent of the company for purposes of this sort; and when the company investigated the claim, and denied liability, it was a needless formality to furnish other proofs of loss. No objection was at any time made to the proofs that were furnished on the ground that they were not properly sworn to. The company's agent misled the insured, and it would be a most palpable denial of justice to allow it to escape liability because sworn proofs of loss were not furnished. Phoenix Ins. Co. v. Spiers, 87 Ky. 285, 8 S. W. 453, 10 Ky. Law Rep. 254; Germania Ins. Co. v. Ashby, 112 Ky. 303, 65 S. W. 611, 23 Ky. Law Rep. 1564, 99 Am. St. Rep. 295; Home Ins. Co. v. Kabb, 113 Ky. 360, 68 S. W. 453, 24 Ky. Law Rep. 223, 58 L. R. A. 58, 101 Am. St. Rep. 354, and cases cited.

The suit was brought June 13, 1908. The answer of the defendant was filed September 16th. At the first term the case was continued. When the case was tried at the next term, the defendant on the trial tendered an amended answer. The original answer traversed the allegations of the petition, pleaded affirmatively the...