Fireman's Fund Ins. Co. of San Francisco, Cal., v. Searcy

• Decision Date: 06 March 1914
• Citation: 163 S.W. 1103,157 Ky. 749
• Parties: FIREMAN'S FUND INS. CO. OF SAN FRANCISCO, CAL., v. SEARCY et al.
• Court: Kentucky Court of Appeals

163 S.W. 1103

157 Ky. 749

FIREMAN'S FUND INS. CO. OF SAN FRANCISCO, CAL., v. SEARCY et al.

Court of Appeals of Kentucky.

March 6, 1914

Appeal from Circuit Court, Woodford County.

Action by James Searcy and others against the Fireman's Fund Insurance Company of San Francisco, Cal. From a judgment for plaintiffs, defendant appeals. Affirmed.

Wallace & Harriss, of Versailles, and Flexner & Gordon, of Louisville, for appellant.

Field McLeod and Alfred H. Nuckols, both of Versailles, for appellees.

MILLER J.

This appeal presents for review a question of fact only. On October 7, 1910, the appellant insurance company issued to the appellees Searcy and Johnson a policy of insurance, by which it insured appellees' crop of tobacco then hanging in their barn in the sum of $1,500 for a period of four months. By agreement between appellant's agent and the appellees, the payment of the premium, amounting to $22.50 was postponed to a later date, and was not paid until a few days before the policy expired. On February 10, 1911, three days after the policy had expired, appellees' barn and crop of tobacco were entirely destroyed by fire. Appellant having refused to pay for the loss, the appellees brought this action, alleging that it was a part of the original contract of insurance of October 7, 1910, that the appellant through its agent Childers, agreed that upon the expiration of the policy, unless the tobacco had previously been sold and removed from the barn, and notice of such sale or removal given by appellees to appellant, the appellant would, in consideration of the usual premium of $22.50, issue to appellees another policy of insurance for a term of four months beginning February 7, 1911, upon the same terms and conditions as the original policy had been issued. The issue having been made upon the allegations of the petition, and a trial had, which resulted in a verdict and judgment for the appellees for $1,297.50, the company prosecutes this appeal.

Appellant asks a reversal upon the single ground that the verdict is not supported by the evidence.

It is conceded that appellee's testimony was sufficient to carry the case to the jury; but appellant insists that a new trial should be granted, because the verdict is contrary to and is not supported by, the evidence.

Appellee Searcy is clear and positive in his testimony that the agreement between him and Childers, the agent for the appellant, was that, unless the tobacco had been sold or removed before the expiration of the policy on February 7th and notice of the sale and removal given by plaintiffs to the company, it would renew the policy. On the contrary, Childers not only contradicts Searcy, but says Searcy came to his house early on the morning succeeding the fire, and, in substance, admitted that his policy had expired, and asked Childers to issue him a new policy, and date it back to February 7th, in order that it would cover the loss in that way, but that he declined to do so, upon the ground that there was no such agreement, and that it would not be fair to...