Hartford Fire Ins. Co. v. Trimble

• Decision Date: 10 February 1904
• Parties: HARTFORD FIRE INS. CO. v. TRIMBLE.
• Court: Kentucky Court of Appeals

78 S.W. 462

117 Ky. 583

HARTFORD FIRE INS. CO. v. TRIMBLE.

Court of Appeals of Kentucky.

February 10, 1904

Appeal from Circuit Court, Logan County.

"To be officially reported."

Action by S. Y. Trimble against the Hartford Fire Insurance Company. Judgment for plaintiff, and defendant appeals. Reversed.

Wilbur F. Browder, Browder & Browder, J. C. Browder, and Barger &amp Hicks, for appellant.

W. P Standidge and Perkins & Trimble, for appellee.

BURNAM C.J.

The appellee, S. Y. Trimble, brought this action on the 2d of March, 1901, in the Logan circuit court, against the Hartford Fire Insurance Company, of Hartford, Conn., the Commercial Union Assurance Company, of London, England, and H. B Caldwell, alleging that the defendant Caldwell was the agent of both of the defendant insurance companies at Russellville Ky. during the year 1898; that during the latter part of August or the first part of September, 1898, he made, through his agent, H. L. Trimble, a verbal contract with the defendant Caldwell, as agent of his codefendants, to issue to him a policy of insurance on a brick dwelling house owned by him, which was located on Morgantown street, for $400; that the policy was to be issued at the expiration of a policy which he then held on the same property for the same amount in another insurance company, which expired on the 21st of July, 1899, but he alleges the defendant Caldwell, who was at that time the cashier of the Logan County Bank at Russellville, Ky. in which he kept an account, failed to comply with the alleged verbal contract, or to execute, issue, or deliver the policy of insurance contracted for; that on the 4th of March, 1900, during the period which was to have been covered by the policy, the house burned up; and he alleges that he is entitled to recover, under the parol contract made with Caldwell, the stipulated insurance, $400, with interest from the 4th day of March, 1900. On motion of defendants, plaintiff was required to elect against which of the defendants he would prosecute his alleged action. This he declined to do. Thereupon the court, electing for him, dismissed the petition against H. B. Caldwell and the Commercial Union Assurance Company, and permitted the action to proceed against the Hartford Fire Insurance Company. The plaintiff thereupon filed an amended petition, in which he made the same allegations against the Hartford Fire Insurance Company as were made in the original petition against each of the defendants therein, and alleged that the amount of the premium contracted to be paid for the insurance policy was to be charged by Caldwell to the account of H. L. Trimble in the bank when the policy was to be issued, in July, 1899. The defendant interposed a general demurrer to the petition as amended, and filed an answer denying every allegation of the amended petition. The case was subsequently transferred by consent to the equity docket, and was decided by a special judge in May, 1902, who gave judgment against the Hartford Fire Insurance Company for $400, with interest from March 2, 1901, until paid; and the defendant prosecutes an appeal from that judgment, and asks a reversal.

The facts in the record relied on to establish the alleged verbal contract of insurance are, in substance, as follows Plaintiff, Trimble, was the owner of four dwelling houses in Russellville, which were covered by insurance policies issued by Edward Sinclair. He also owned a house in connection with J. S. Stanley, which was insured by John Long, agent. The house which burned was located on Morgantown street, and was one of those insured through the agency of Sinclair. The policy on this house expired on the 21st of July, 1899, and was for $400. Sinclair also held policies on a dwelling house on Center street occupied by Mr. Lyne, a brother-in-law of the plaintiff, on another on Nashville street, and on another on Spring street. Another house on Spring street was insured in the Long agency for $800. The plaintiff resided in Elkton, Ky. and the alleged parol contract with defendant was made for him by his brother H. L. Trimble, who at that time resided in Russellville, but who shortly afterwards moved to Elkton. To support his contention, plaintiff introduced H. L. Trimble, who testified, in substance, that, in the latter part of the summer or the early part of the fall of 1898, he made a parol contract with H. B. Caldwell to insure in companies represented by him every house belonging to his brother or himself in Russellville; that the insurance on these houses was at that time carried by other agencies, but that Caldwell agreed to ascertain the dates of the expiration of the existing policies from these agencies, and at their expiration to renew them in companies represented by him, and to charge the premium to the joint account of S. Y. and H. L. Trimble, carried in the name of H. L. Trimble in the bank of which he was cashier, and that he was to keep the policies in his vault; that he supposed these policies had been regularly issued under the contract; that on the morning after the fire he called up Caldwell over the telephone, and asked him in regard to the policy on the house which had burned, and for the first time learned from him that he did not have that house insured in either of his companies. S. Y. Trimble testified that he had a conversation with Caldwell in May, 1899, about the insurance upon these houses, in which he informed him that he had understood from his brother that he had made a trade with him to renew all the policies of insurance upon the houses owned by him at the date of their expiration in the companies represented by Sinclair and Long, and that Caldwell admitted that he had made such a contract. Neither of the Trimbles, however, testified that Caldwell stated to them that the insurance was to be placed with the Hartford Insurance Company. S. Y. Trimble filed with his deposition a letter dated on the 26th of November, 1898, addressed to him at...