Gresham v. Norwich Union Fire Ins. Society

• Citation: 157 Ky. 402,163 S.W. 214
• Parties: GRESHAM v. NORWICH UNION FIRE INS. SOCIETY.
• Decision Date: 11 February 1914
• Court: Court of Appeals of Kentucky

163 S.W. 214

157 Ky. 402

GRESHAM v. NORWICH UNION FIRE INS. SOCIETY.

Court of Appeals of Kentucky.

February 11, 1914

Appeal from Circuit Court, Lyon County.

Action by E. L. Gresham against the Norwich Union Fire Insurance Society. Judgment for defendant, and plaintiff appeals. Affirmed.

L. H James, of Marion, and Hodges & James, of Eddyville, for appellant.

J. C Gates, of Princeton, and Willard Utley, of Eddyville, for appellee.

CLAY C.

About April 28, 1910, E. L. Gresham purchased from C. Armstrong a house and lot in Eddyville, Ky. At the time of the conveyance, Armstrong was carrying a $1,000 policy of insurance on the house. The policy was issued by the Norwich Union Fire Insurance Society, of which N.W. Utley was the agent at Eddyville. The policy was dated February 19, 1910 and by its terms expired February 9, 1911. When the sale was effected, the policy was assigned by Armstrong to Gresham, and the transfer was approved by the usual indorsement on the policy made by the company's agent. At the time of the assignment, Gresham was carrying a $600 policy of insurance issued by the Pennsylvania Fire Insurance Company, and expiring on December 30, 1910. N.W. Utley, the agent of the Norwich Union Fire Insurance Society, was also the agent of the Pennsylvania Fire Insurance Company. On May 29, 1911, more than three months after the expiration of the policy issued by the Norwich Union Fire Insurance Society, the dwelling house covered by that policy was destroyed by fire. Gresham brought this action against the company to recover the sum of $1,000, claiming that prior to the expiration of the policy he entered into a parol agreement with the company's agent to renew the policy upon its expiration. At the conclusion of plaintiff's evidence, the trial court gave a peremptory instruction in favor of the defendant. Plaintiff appeals.

While plaintiff testified that defendant's agent agreed either during the month of October or November, 1910, to renew the policy on the same terms and conditions as the original policy, yet, when asked by counsel to detail the exact conversation which took place between him and the defendant's agent, he made the two following statements: "He was trying to write me an additional thousand; wanted to write an additional thousand after I had repaired the house. I told him I didn't care to take any more; that I didn't feel like I was able to take an additional thousand on the house; and he insisted that he should write an additional thousand on the house for me since I had repaired it. Then he rather insisted more that I should give him another thousand on it. He went on and asked me what I had on it. I told him, 'I have the thousand that you have and six hundred that Mr. Molloy has on the dwelling.' In our conversation there, as he talked and wanted to write this additional thousand, I said, 'Mr. Utley, I don't care to take another one, because I am not able to pay for an additional thousand, because I am carrying as much as I feel like I am able to pay on the two buildings.' I said, 'You may carry the two policies you are now carrying.' He said, 'Certainly. I don't want to lose what I have got, if I can't get any more.' He was carrying two thousand for me then, one on the house and one on the stable." "I met Mr. Utley on the sidewalk, and I wanted to borrow some money; that is what brought up the conversation. I asked him if he had $500 he wanted to loan me, but he said he did not; but he said, 'I am figuring on selling my farm in a few days, and, if I do, I expect I can let you have it.' He turned right around and asked me about how much insurance I was carrying down there. I told him I was carrying the thousand he had and six hundred Mr. Molloy had. He wanted to write me an additional thousand. I told him I didn't feel like I could carry more than I was paying for then; that I knew I needed it, but didn't feel like I could pay for more than I was carrying then. I said, 'I want you to keep up the two policies you have.' He says, 'Certainly; I want to do that, if I don't get anything more. I don't want to lose anything I have got."'

When asked by the court to tell exactly what the agent said, plaintiff answered as follows: "He said he wanted to carry the two policies on; he didn't want to lose any if he didn't get any more. The two policies he was carrying was the one on the residence and the other on the stable, that we were talking about. They were to be carried for the same amount, and he said he certainly wanted to do that; he didn't want to lose anything he had."

Plaintiff further testified that after the fire he met Mr. Utley, the agent, and that the latter asked him where the Norwich Union policy was. Plaintiff replied, "It is in the bank, I suppose." He looked for the policy at the bank. The old policy was...