German-American Ins. Co. v. Yellow Poplar Lumber Co.

• Decision Date: 18 January 1905
• Citation: 84 S.W. 551
• Parties: GERMAN-AMERICAN INS. CO. v. YELLOW POPLAR LUMBER CO.
• Court: Kentucky Court of Appeals

84 S.W. 551

GERMAN-AMERICAN INS. CO. v. YELLOW POPLAR LUMBER CO.

Court of Appeals of Kentucky.

January 18, 1905

Appeal from Circuit Court, Boyd County.

"Not to be officially reported."

Action by the Yellow Poplar Lumber Company against the German-American Insurance Company. From a judgment for plaintiff, defendant appeals. Affirmed.

T. R Brown, for appellant.

Hager &amp Stewart and Robt. L. Greene, for appellee.

NUNN J.

This action was instituted upon two policies of insurance appellee suing to recover damages for loss occasioned to and sustained by appellee by reason of a fire occurring on September 3, 1900, resulting in the destruction and loss of a stock of lumber in its lumber yard at Scranton, Ky. One of the policies was for $2,500, dated 21st day of April, 1900 the other for $2,000, dated June 7, 1900, each extending for one year. The issuance of the policies, the company's authority to do business in Kentucky, and the authority of its agent at Ashland to issue policies, was admitted by appellant's answer. The answer also admits the description of the property covered by the insurance, notice of loss, proofs and acceptance thereof, and failure to pay for the loss. While the answer denied total loss, and the value of the property destroyed, and denied the ownership by appellee of the same, these facts were proven on the trial, and were virtually abandoned by appellant, and are not urged as causes for reversal on this appeal. Each of the policies in suit, when issued, contained what is known in lumber insurance as a "clear-space clause," appearing on slips annexed to and forming a part of the policy. The clause is as follows: "Warranted by the assured that a continued clear space of One hundred and fifty feet (150) shall hereafter be maintained between the property hereby insured and any wood working or manufacturing establishment, and that said space shall not be used for the handling of lumber thereon for temporary purposes, tramways, upon which lumber is not piled, alone being excepted. But this shall not be construed to prohibit loading or unloading within or the transportation of lumber and timber products across such space, it being especially understood and agreed by the assured that any violation of this warranty shall render this policy null and void." It appears from the petition that the space named in this clause was not maintained at the time, and for some period prior to the fire and destruction of the lumber, and in avoidance of the effect of this clause, it was, in substance, alleged that after the policies were issued and delivered it was ascertained that appellee could not maintain or keep clear the space required, and it, on or about the 16th day of July, 1900, made and entered into an agreement and contract with appellant's agent at Ashland, Ky. who was authorized to make the contract, by which, in consideration of additional sums named, to be paid as premium on each of the policies, "the clear-space clause" was abrogated, and appellee was from that date not required to maintain the clear space of 150 feet around the lumber insured. It was also agreed at the time that appellant's agent should prepare a slip, evidencing this contract, to be attached to the policies, and forward same to the office of appellee, which, on account of the neglect of appellant's agent, was not done until the day after the fire. Appellant, by pleading, denied such a contract, or any contract with reference to the abrogation of the clear-space clause, and denied the power or authority of its agent to make such a contract, and alleged that the contracts of insurance or policies filed with appellee's petition were made and accepted upon these terms, to wit: It was agreed between the parties thereto, and made a part of the policies, that no officer or agent or other representative of the insurance company had power to waive any provision or condition of same, except such provisions or conditions as by the terms thereof might be subject of agreement indorsed thereon, and as to such provisions or conditions it was agreed between the parties that no such officer or agent or other representative of the company had power or authority to waive such provisions or conditions unless such waiver be written upon or attached to said policy, and that no privilege or permission affecting the insurance under the policies should exist or be claimed by the insured unless so written or attached, and denied that it or its agents at any time wrote upon or attached to the policies any agreement of waiver or abrogation of the agreement for maintaining the clear-space clause, and in apt terms denied all allegations as to breach of the contract of insurance. There is some conflict in the evidence as to whether or not the alleged abrogation of the clear-space clause in the policies was made before the loss. The question was submitted to the jury, and it found in favor of appellee, and we are of the opinion the preponderance of the evidence sustains the verdict on this point.

The only remaining alleged error complained of by appellant which we deem necessary to notice, is the question whether or not the agent of appellant had the power and authority to make the contract referred to in the manner stated, and bind the appellant. This court has repeatedly decided that an agent's acts within the general scope of his authority bind his...