Georgia Home Ins. Co. v. Kelley

• Decision Date: 02 December 1908
• Citation: 113 S.W. 882
• Parties: GEORGIA HOME INS. CO. v. KELLEY.
• Court: Kentucky Court of Appeals

113 S.W. 882

GEORGIA HOME INS. CO. v. KELLEY.

Court of Appeals of Kentucky.

December 2, 1908

Appeal from Circuit Court, Henry County.

"Not to be officially reported."

Action by Leonard Kelley against the Georgia Home Insurance Company. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

Wm. P Thorne and William Carroll, for appellant.

Moody &amp Barbour, for appellee.

HOBSON J.

On February 6, 1907, the Georgia Home Insurance Company issued a policy to Leonard Kelley, insuring a lot of tobacco that he owned in the sum of $600 for three months, or until noon May 6, 1907. The tobacco was burned on the night of the 6th of May, and this suit was brought by Kelley to recover on the policy. He charged that at the time the policy was written and afterwards, the insurance company, through its agent agreed with him that, upon the expiration of the policy, it would issue to him another policy for the term of three months, beginning at noon May 6, 1907, in consideration of the usual premium; that its agents in Henry county, having authority to make contracts of insurance and to renew them, had been for some time doing business with him, and had, under a similar agreement, issued to him new policies upon the expiration of the old ones; that the premiums were not paid at the time the policy was issued, but were charged to him, and paid by him afterwards; that this was the usual course of dealing between the parties, and that because of this, he had not, on May 6th, paid the renewal premium, which he would have done but for the agreement with the agent to keep the policy in force, and to collect from him the premium later; and that he did not know that the agent had failed to renew the policy until after the fire. The defendant put in issue the allegations of the petition. The case was tried before a jury, who found for the plaintiff, and, the court having entered judgment on the verdict, the defendant appeals.

The petition is sufficient to maintain the action under the rule laid down by this court in Baldwin v. Phoenix Ins Co., 107 Ky. 356, 54 S.W. 13, 92 Am. St. Rep. 362. The proof on the trial, both for the plaintiff and the defendant, substantially showed that at the time the policy was issued it was agreed between the plaintiff and the agent that the agent would keep it in force when it expired by renewing it, and that this course of business had been pursued by the parties for some time. After the policy was issued, the plaintiff called the agent up over the phone. He and the agent do not differ substantially as to what occurred. He said to the agent to keep the policy in force for him, and not let it run out when it expired, and the agent, in effect, said he would. The agent, however, testified that in March the plaintiff had fallen in debt to him in the sum of $92, and that he failed to pay it; that in April he saw him, and told him that he must pay up or he would not carry the policy any longer, and that when he failed to pay, he wrote him a letter, telling him that he would not renew this policy on May 6th. The plaintiff denied receiving the letter, and also denied that the agent told him that he would not carry the insurance longer. After the fire Kelley called up the...