Grove Lodge v. Fidelity Phoenix Ins. Co.

• Decision Date: 27 May 1921
• Citation: 191 Ky. 666
• Parties: Grove Lodge No. 274 I. O. O. F. v. Fidelity Phoenix Insurance Company.
• Court: Kentucky Court of Appeals

Page 666

191 Ky. 666

Grove Lodge No. 274 I. O. O. F. v. Fidelity Phoenix Insurance Company.

Court of Appeals of Kentucky.

Decided May 27, 1921.

Appeal from Owen Circuit Court.

J. G. VALLANDINGHAM for appellant.

J. W. CAMMACK and CAMMACK & BAKER for appellee.

OPINION OF THE COURT BY JUDGE THOMAS — Affirming.

Appellant, lodge, plaintiff below, sued the appellee and defendant below, insurance company, to recover $600.00. It was alleged in the petition that plaintiff held a contract with defendant whereby the latter agreed to insure and indemnify plaintiff against damage or loss produced by fire to its lodge building and its paraphernalia and furniture therein located in the village of Poplar Grove in Owen county. The lodge room owned by plaintiff was the second story of a frame building, the first story of which was occupied by a Mr. Slaughter as a dealer in general merchandise. It was alleged that the contract was entered into on June 12, 1917, and that on the 20th of that month the property was destroyed by fire, and that defendant denied all liability and refused to pay any part of the insurance although it had been notified of the loss. The answer was a denial of all the affirmative allegations made in the petition, and after evidence heard the jury, under the instructions of the court, of which no complaint is made in the motion and grounds for a new trial, returned a verdict in favor of defendant, followed by a judgment dismissing the petition, of which plaintiff makes complaint on this appeal.

To say in a motion for a new trial that a verdict "is contrary to law" is too general and will not raise the error, if any, in giving and refusing instructions. American Credit Co. v. National Clothing Co., 122 S. W. (Ky.) 840; Charles Taylor Sons Co. v. Hunt, 163 Ky. 120, and Nicholson v. Patrick, 160 Ky. 674. But, if the motion in this case had been sufficiently specific to raise the question, there could be no reversal because of any error in the instructions since they submitted to the jury in appropriate language the issues, (a) the supposed authority of J. F. Brock, the alleged agent, through whom the insurance contract was alleged to have been procured, and (b) whether he, as such alleged agent, made the contract with plaintiff in such a way as to bind defendant.

Briefly noticing issue (a), the testimony in the case leaves no doubt in our minds that as between himself and the defendant company, Brock was not its agent. In fact it is proven by a high officer of the defendant, who appoints all of its agents in the territory of which Kentucky is a part, that Brock was not, nor had he ever been, defendant's agent to solicit or procure insurance. He held no commission or authority from the company, which according to the testimony was invariably given to its appointed agents. However, the defendant might be liable to members of the public for the acts of Brock, if it held him out as its agent and dealt with him in such a manner as to induce the belief that he was authorized to represent it in negotiating for and procuring insurance. The only evidence upon this point was the testimony of Brock, who stated without qualification that he was an agent of defendant; but, curiously enough, it is not shown even by himself that he ever wrote a policy or that he did anything more than to assist the local agent at Owenton, Kentucky, in procuring some local risks in his neighborhood for...