Phoenix Ins. Co. v. Stevenson

• Decision Date: 04 November 1879
• Citation: 78 Ky. 150
• Parties: Phœ nix Ins. Co. v. Stevenson.
• Court: Kentucky Court of Appeals

78 Ky. 150

Phœ nix Ins. Co. v. Stevenson.

Court of Appeals of Kentucky.

November 4, 1879

1. Appellant issued to appellee a policy of insurance upon his house for $3,000, providing that if he insured the house in any other company, without the consent of appellant, the insurance was to be void. He insured the house in other companies, without the consent of appellants, and the house was burned.

2. Held, that it was not the duty of appellant, after being informed of additional insurance and the burning, to return the premium for the time the policy had to run from the burning till the expiration of the policy.

3. The fact that appellant, after notice of the burning and of additional insurance, requested appellee to write out and present his claim, was no waiver of the condition mentioned in the policy.

APPEAL FROM SCOTT COURT OF COMMON PLEAS.

MESSRS LINCOLN, SMITH & STEPHENS AND J. E. CANTRILL FOR APPELLANT.

1. The court erred in refusing a non-suit. (Carroll v. Charter Oak Ins. Co., 38 Barb., 408; Diehl v. Adams Ins Co., 58 Penn. St., 452; Viele v. Germania Ins Co., 26 Iowa 9; Packard v. Sears, 6 Ad. & Cl., 469; Parson on Bills, 594; Story on Prom. Notes, sec. 280; Long vs. Young, 8 Eng. Ark., 401; Ins. Co. v. Wolf, 5 Otto, 326; 22 Mich. 473; 29 Iowa 565; 7 Allen, 241; 66 Penn. St., 22; 58 Ibid, 444; Baer v Phœ nix Ins. Co., 4 Bush, 242; 7 Allen, 239; 29 Iowa 562; 9 Md. 1.)

2. The court erred in its instructions. (May on Ins., 711; Flanders Fire Ins., 155; 2 Arnold on Ins., 1215, 1224, 1226; 7 Ohio 325; 4 Taunt., 330; Keel v. Ogden, 3 Dana, 107; Wing vs. Haydon, 280; Pollard v. Taylor, 2 Bibb, 234; Wood Fire Ins., 693, 709; 5 Hill N. Y. R 421; 8 Johnson N. Y. R., 1; 3 B. & P., 191; 4 Camp., 297.)

W DARNABY AND W. LINDSAY FOR APPELLEE.

1. The motion for a non-suit was properly overruled, and the instructions given contain the law. (May on Insurance, sec. 468; Manhattan Ins. Co. v. Stein, & c., 652; 52 Maine Rep., 492; 43 Barb. N. Y., 351; 28 Wis. 472; Walters v. Chin, 1 Met., 502; Plummer v. Newdigate, 2 Duv., 1; Meriman on Plead., 246; Ill. Rep., 1877; Central Law Journal, 1877, p. 167; Wool on Ins., 176, 178; 43 Wiseman's Rep., 108; Baer v. Phœ nix Ins. Co., 4 Bush, 242; Kenton Ins. Co. v. Shea, 6 Bush, 174.)

OPINION

HINES JUDGE:

A policy of insurance for $3,000, to run one year from date, was issued October 25th, 1877, on a dwelling-house belonging to appellee. On the same day, but subsequent to the issuing, delivery, and acceptance of the policy issued by appellant, appellee procured, in other companies, additional insurance on the same property for the sum of $6,000. In the policy issued by appellant it is provided, that " if the assured shall have, or shall hereafter make any other insurance on the property hereby insured, or any part thereof, without the consent of the company written hereon, … . then this policy shall be void."

No notice was given to appellant of the additional insurance, nor was it known to it until after the destruction of the property by fire, which occurred some two months after the date of the policy.

Upon the refusal of appellant to pay the loss, this action was instituted, appellant relying upon the breach of the provision of the policy as to additional insurance, and appellee insisting that appellant had waived this right by requiring appellee to make out and forward, after knowledge of the insurance in other companies, a statement and proof of loss as provided for in the policy. The only evidence offered in support of the plea of waiver is the following letter by the general agent of the company to the local agent at the place where the property had been situated:

" CINCINNATI, Feb. 12th, 1878.

H. S. RHOTON, ESQ., Agent, Georgetown, Ky.:

DEAR SIR: We are in receipt of a sworn statement over the signature of Henry Stevenson, jr., the object of which we are unable to make out, for in no other place does he intimate that he holds a policy in this company; he furnishes us no written copy of any such a policy, and it is impossible for us to understand upon what he bases his claim, if such, in fact, was his purpose in sending the singular document to us. Be good enough to inform Mr. Stevenson that if he has any claim to make against this company, under or by virtue of a policy of insurance, such claim must be made in strict accordance with the conditions of said policy, to which he is respectfully referred. Please communicate the contents of this letter to Mr. Stevenson, in the presence of a witness, and if necessary, furnish him a copy thereof.

Yours very truly,

H. M. MAGILL, Gen. Agent. "

Subsequently the following letter was written to and received by appellee:

" CINCINNATI, March 8th, 1878.

HENRY STEVENSON, JR., ESQ., Georgetown, Ky.:

DEAR SIR: We are in receipt of a document over your signature purporting to be a statement, in addition to one formerly made by you, with reference to the loss of a certain dwelling by fire.

In response we would say that as yet it is impossible for us to understand the meaning of either the original statement or the addition thereto, taken separately or in connection with each other, and beg to repeat, if you have a claim against this company, it will be necessary to furnish proof of loss in accordance with the conditions of the policy, copy of which we hand you herewith.

We desire now, however, to call your attention to the fourth paragraph of the conditions, in which the following clause appears: ‘ Or if the assured shall have, or shall hereafter make any other insurance on the property hereby insured, or any part thereof, without the consent of the company written herein, … then, and in every such case, this policy shall be void.’

This condition is in the policy of this company now held by you, and has never been waived by the company or its agent, either directly or indirectly, and no consent for additional insurance had been given by written indorsement on the policy.

At the time of the alleged burning of your dwelling-house, there was, as we learn from your sworn statement, the sum of six thousand dollars additional insurance thereon, without our knowledge or consent, or without the knowledge or consent of our agent, to-wit: the sum of three thousand dollars in the Liverpool, London and Globe Insurance Company, and the further sum of three thousand dollars in the Scottish Commercial Insurance Company, thereby rendering the policy of the Phœ nix Insurance Company null and void, of which fact we hereby inform you, that your further actions may be governed accordingly.

Respectfully,

H. M. MAGILL, Gen. Agent. "

On the trial of the case, appellee was asked if he had not been put to considerable expense in preparing the statement of loss made out after receipt of the letter of February 12, quoted above, to which he responded that he had paid $5 to the attorney to make out the statement, that he had paid the hire of a horse and some tolls, but that he had been to no great expense. This evidence was excluded from the jury over the objection of appellee. The property was proved, over the objection of appellant, to have been worth $14,000 or $15,000, and appellee was also, against objection, permitted to state that no part of the premium had been tendered or paid back to him.

At the close of the evidence introduced by appellee, which embraced the letters of March 8th, 1878, and of February 12, 1878, appellant moved to instruct the jury as in case of non-suit, which motion the court overruled, and after the evidence for appellant had been heard, under instructions given by the court, and excepted to by appellant, the jury found for appellee the full amount of the policy.

Among the instructions given are the following:

" 1. If the jury believe, from the evidence, that the plaintiff, after the execution of the policy sued on, took out additional insurance on his dwelling-house in other companies, without the written consent of defendant indorsed on said policy, then the jury ought to find for the defendant, unless they believe, from the evidence, that after the burning of plaintiff's house, the defendant, on being informed of the fact that additional insurance had been taken thereon by plaintiff, failed to return the premium for the time the policy had to run from the time of the fire to the date fixed for its expiration; and also believe that the defendant, after being informed of the burning of plaintiff's house, and the fact that plaintiff had insured said house in another company or companies, requested plaintiff to prepare and present his claim against the company on account thereof, in accordance with the terms of the policy, in which event the law is for the plaintiff, and the jury should so find.

3. The breach in the condition in the policy against additional insurance imposed on the defendant, on being informed thereof after the loss, the duty to elect whether it must insist on a forfeiture of the policy and return the unearned premium received on the risk, or waive its right to insist on said forfeiture, and regard the policy as still valid and obligatory.

The failure to return the premium after the knowledge of the fact that the additional insurance was obtained on the plaintiff's house, and a request, after being informed of the loss, if such request was made, to the plaintiff to make out any claim he might have against the company in accordance with the provisions of the policy as to proof of loss, amount to an election to waive the forfeiture and to consider the policy as valid and obligatory."

The instruction marked No. 1 is erroneous, first, because it tells the jury that appellant could not rely upon the forfeiture resulting from additional insurance on account of its failure to return to a...