Home Ins. Co. of New York v. Roll

• Decision Date: 13 February 1920
• Citation: 218 S.W. 471,187 Ky. 31
• Parties: HOME INS. CO. OF NEW YORK v. ROLL.
• Court: Kentucky Court of Appeals

218 S.W. 471

187 Ky. 31

HOME INS. CO. OF NEW YORK v. ROLL.

Court of Appeals of Kentucky.

February 13, 1920

Appeal from Circuit Court, Muhlenberg County.

Action by Vannie M. Roll against the Home Insurance Company of New York. From a judgment for plaintiff, defendant appeals. Reversed for further proceedings.

Gordon & Laurent and Frank M. Drake, all of Louisville, and Taylor Eaves & Sparks, of Greenville, for appellant.

W. C Jonson and Hubert Meredith, both of Greenville, for appellee.

QUIN J.

By its policy dated October 27, 1916, appellant, among other things insured appellee's dwelling and certain grain and seed in the respective sums of $800 and $300, issuing what is known as a "farm installment policy" to cover same. One-fifth of the premium was paid in cash, the balance payable in four equal annual installments, represented by notes, executed by appellee and payable November 1st of each year.

Appellee's dwelling and a certain quantity of seed were destroyed by fire early in the morning of November 7, 1917, and, appellant having declined to admit liability under the policy, suit was filed thereon, and a trial resulted in a verdict in appellee's favor for $1,022.50, to reverse which judgment this appeal has been prosecuted.

The policy contains the following provisions:

"* * * And the amount of loss or damage having been thus determined, the sum for which this company is liable pursuant to this policy shall be payable sixty days after due notice, ascertainment, estimate and satisfactory proofs of the loss have been received by this company in accordance with terms of this policy. But it is expressly agreed that this company shall not be liable for any loss or damage that may occur to the property herein mentioned while any installment of the installment note, given for premium upon this policy, remains past due and unpaid; or while any single payment, promissory note (acknowledged as cash or otherwise) given for the latter or any portion of the premium remains past due and unpaid. Payments of notes and installments thereof must be made to the said Home Insurance Company at its Western Farm Department office in Chicago, Illinois, or to a person or persons specially authorized to collect the same for said company."

During the month of October, 1917, contemplating insurance on a new barn then in process of erection, insured requested insurer's agent to inspect the barn to see if the policy could be so changed as to include it. Having, about the 30th of October, received a negative answer, insured claims that on November 1st she mailed to insurer's office in Chicago her personal check in payment of the installment note due on that day, accompanied by a letter inclosing same, also the notice received from the company about the middle of October, calling her attention to the maturity of the note. These papers she says were inclosed in a white envelope of the Green River Lumber & Tie Company, properly stamped and addressed to the company, and which was mailed at the post office at Greenville, Ky. November 2d, insurer's agent met appellee's husband on the street, and asked him if they had sent their premium to the company, and when answered in the affirmative the agent replied, "All right."

On the morning of the fire (November 7, 1917), and before noon of that day, insured wrote the company, notifying it of the loss. This letter insured states was inclosed in a blue self-addressed envelope, which had been received from the company. Thereafter she received a letter from the company, under date of November 13th, stating that on the 12th of November they had received notice from their agent that the property covered by their policy had been destroyed by fire November 7th, the company notifying appellee that, at the date of the fire the installment premium being overdue and unpaid, it was not liable for any loss or damage, and thereupon inclosed the company's check for the amount of the installment. The company in said letter denied any liability in any amount on account of the loss. This check was later returned to the company.

Various officers and employés of the company testified, in effect, that the only communication received from the insured was on November 9th, when they received the blue envelope above referred to, containing the notice of the maturity of the installment note and the insured's check dated November 1, 1917, in payment thereof; that up to that date they had never at any time received any other letters or communication from the insured. The blue envelope was filed in the record, and bears this postmark: "Greenville, Ky. Nov. 8, 1917, 10 a. m.," and indorsed in the upper left-hand corner is the number of insured's policy, which it is admitted was written there by her husband. The ordinary time for the carriage of mail from Greenville, Ky. to Chicago, Ill., is one day, and a letter, mailed at the former city before noon, should reach Chicago before noon of the following day. Having no knowledge of the fire, the check, when received, was duly transmitted to the company's cashier and proper entry made in its books of the receipt thereof. The check was deposited November 10th, and, according to the perforation on the check, it was received and charged to insured's account at her bank in Greenville, November 12th. The company's agent on the 10th of November sent a notice of the fire. This was received November 12th, after the check had been deposited, and this was the first notice the company had of the loss. The letter to appellee of November 13th, above referred to, followed the receipt of the notice. Thus it will be seen that the real issue is as to the inclosures in the blue envelope.

If the check had been mailed November 1st, as testified by insured it should have reached Chicago the following day. Had the blue envelope postmarked November 8th contained the notice of loss as claimed by appellee, it should have reached Chicago November 9th, the day before the check was actually deposited, and it does not seem probable, with this notice of the loss, the company could have accepted the check, coming as it did 9 days after it was due. The facts of this case are almost identical to those found in Continental Ins. Co. v. Hargrove, 131 Ky. 837, 116 S.W. 256, wherein the insured claimed that in payment of a premium due September 1st, he mailed a check to the company on September 4th, but the company did not receive it until the 20th, the day after the insured had received a notice from the company, calling his attention to the fact that his installment note was due and unpaid. This notice was sent without knowledge on the part of the company that the insured's property had been destroyed by fire September 12th. In reversing a judgment for plaintiff the court said:

"The evidence is so persuasive to our minds that the letter and checks were not received till the 20th that we must say that at first blush the verdict seems to be a flat

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