Martin v. Palatine Ins. Co.

• Decision Date: 02 February 1901
• Parties: MARTIN v. PALATINE INS. CO.
• Court: Tennessee Supreme Court

61 S.W. 1024

MARTIN v. PALATINE INS. CO.

Supreme Court of Tennessee.

February 2, 1901.

Appeal from chancery court, Davidson county; H. H. Cook, Chancellor.

Action by N. Martin, as administrator of the estate of P. Bernstein, against the Palatine Insurance Company and the Hartford Insurance Company. From a judgment in favor of plaintiff and exonerating the Hartford Company from liability, the Palatine Company appeals. Affirmed.

Granbery & Marks, for appellant. Edward H. East, for appellee Martin, administrator, etc. R. W. Barger and John J. Vertrees, for appellee Hartford Fire Ins. Co.

McALISTER, J.

This record presents a controversy between two fire insurance companies as to which shall be onerated with a loss. The complainant has sued both companies. The Palatine Company issued the first policy, but it contended that policy was canceled upon notice, and a new policy substituted in the Hartford Company. The chancellor and the court of chancery appeals concurred in adjudging liability against the Palatine Company and in exonerating the Hartford Company. The Palatine Company appealed, and has assigned errors.

The facts found by the court of chancery appeals are substantially these: In December, 1897, P. Bernstein, of Nashville, was the owner of a stock of merchandise in the city of Jackson, Tenn. His son, C. Bernstein, was placed in charge of this store as manager. It appears that P. Bernstein insured this stock of goods at Jackson, and carried the policies with him to Nashville, where he resided. Desiring additional insurance, he directed his son, at Jackson, to take out another policy for $2,000. The son accordingly applied to Fisher & Wilkerson, agents, stating that he preferred a policy either in the Hartford or Ætna Insurance Companies. The agents informed him these companies had as much insurance in that block as they desired, but they would procure a policy for him in the Palatine Insurance Company. This insurance was placed through another agent, and the policy was to run for 12 months. Wilkerson & Fisher delivered this policy to C. Bernstein, and collected the premium for one year, with the understanding that they would divide commissions with the agent of the Palatine Insurance Company in accordance with the usual custom in such cases. This policy was forwarded by C. Bernstein to his father, at Nashville. P. Bernstein, the father, died on December 26, 1897, and on December 31, N. Martin, of Nashville, qualified as administrator of his estate. It appears that on December 30th the agent of the Palatine Insurance Company notified Wilkerson & Fisher that the manager of the Palatine Company desired to take up the policy that it had issued on this stock. They replied: "All right. Consider it canceled, and we will substitute for it our policy in the Hartford." At that time nothing was said about returning the premium. On the 1st of January, 1898, Wilkerson & Fisher, without the request of any one representing the assured wrote a policy in the Hartford Insurance Company for $2,000, payable to the estate of P. Bernstein, deceased, for one year from January 1, 1898. This policy was handed to Clarence Bernstein, and by the latter given to N. Martin, administrator of Phillip Bernstein, deceased. The administrator received the policy on the 7th January, and up to that time he had no knowledge of any change in the policies made by the agents. When the Hartford policy was delivered to C. Bernstein, he was informed that the Palatine policy had been canceled. C. Bernstein afterwards promised to have the Palatine policy sent back to the agent. He stated, however, that he did not agree to the cancellation of the Palatine policy. On the night of January 4, 1898, a fire occurred, which destroyed a...