Phoenix Insurance Company v. Lawrence et al.
| Decision Date | 06 June 1862 |
| Citation | 61 Ky. 9 |
| Parties | Phoenix Insurance Company vs. Lawrence et al. |
| Court | Kentucky Court of Appeals |
APPEAL FROM KENTON CIRCUIT COURT.
BENTON & NIXON, for appellants.
MOOAR & O'HARA, for appellees.
JUDGE BULLITT DELIVERED THE OPINION OF THE COURT:
The appellant, for a premium of $14, insured J. B. Lawrence & Co., against loss by fire, from the 25th May, 1858, to the 25th May, 1859, "to the amount of $200 on their frame storehouse, situated on the Ohio river, in Gallatin county, Kentucky, known as Jackson's Landing — and $1,200 on their stock of goods in said storehouse."
The policy contains this clause: "The interest of the assured in this policy is not assignable unless by the consent of this company manifested in writing; and in case of any transfer or termination of the interest of the insured, either by sale or otherwise, without such consent, this policy shall from thenceforth be void."
It also contains this clause: "In case the above mentioned premises shall at any time * * * be appropriated, applied, or used to, or for the purpose of carrying on or exercising therein any trade, business, or vocation, denominated hazardous or extra-hazardous, or specified in the memorandum of special hazards, in the terms and conditions annexed to this policy, or for the purpose of storing therein any of the articles, goods or merchandise in the same terms and conditions denominated hazardous, extra-hazardous, or included in the memorandum of special hazards, except herein specially provided for or hereafter agreed to by this company in writing, to be added to or endorsed upon this policy, then and from thenceforth so long as the same shall be so appropriated, applied or used, these presents shall cease and be of no force or effect."
One of the conditions annexed to the policy declares that
There is annexed to the policy an enumeration of not hazardous goods &c., viz: "staple foreign dry goods in packages, and staple domestic dry goods, in stores where no hazardous merchandise is kept, and household furniture in dwelling houses," which "may be insured at 5 cents per $100 in addition to the rate of the building;" and an enumeration of hazardous goods, &c., viz: oil, sulphur, grocer's stock, tallow and several other articles, which "subject the building and all its contents to an additional charge of 10 cents per $100;" and dry goods, (general stock of) boots and shoes, flour, teas and other articles, which "are charged 10 cents per $100 in addition to, but do not increase the rate of the building;" and an enumeration of extra hazardous goods, &c., viz: rosin, spirits of turpentine, and other articles, which "subject the building and all its contents to an additional rate of 20 cents per $100; and china unpacked, fancy goods and other articles, which are charged 20 cents per $100 in addition to but do not increase the rate of the building:" and a memorandum of special hazards, in which it is declared that "GUNPOWDER, PHOSPHORUS and SALTPETRE are expressly prohibited from being deposited, stored or kept in any building insured, or containing any goods or merchandise insured by this policy, unless by special consent in writing on the policy."
Said house and goods were destroyed by fire on the 5th April, 1859, and Lawrence & Co. afterward assigned their claim upon the policy, to J. L. Eggleston, and joined him in bringing this suit for his benefit, asserting no claim for the loss of the house, but claiming $1,200 for the loss of the goods, and alleging in their petition that the defendant, by its authorized agent, had ascertained the amount of the loss, and promised to pay said sum of $1,200.
The defendant denied the alleged promise, and resisted a recovery upon the following alleged grounds, among others: 1. That Lawrence & Co., when they obtained the insurance, represented themselves as the owners of said house, when in truth they were not. 2. That they had sold and disposed of the goods before the loss, and had no interest therein when the loss occurred. 3. That said house, at the time of the fire, was used to keep and store gunpowder, sulphur, rosin, turpentine and oil.
There was evidence conducing to prove that the adjusting agent of the defendant, after inquiring into the loss, had promised to pay the said sum of $1,200.
It appeared that said storehouse belonged, not to Lawrence & Co., but to Lawrence, a member of the firm — there was no evidence of any representation on the subject except that furnished by the policy.
It appeared that on the 22d March, 1859, the members of said firm signed a deed conveying said goods to Casey & Yeager, in trust to pay debts due to them and the other creditors of Lawrence & Co.; but there was conflicting evidence upon the question whether or not the deed had been delivered and accepted, so as to take effect between the parties. And there was evidence conducing to prove that an execution remaining in the sheriff's hands, had been levied on the goods, which, however, were left in the possession of Lawrence & Co.
There was evidence conducing to prove that sulphur, rosin, turpentine, oil and saltpetre were in the house, forming part of the stock of goods at the time of the fire.
There was no evidence that any inquiries were made of the insured as to the character of their stock of goods; no evidence except that furnished by the policy, either as to the character of the goods, when the insurance was obtained, or as to the representations of the insured upon the subject; and no evidence as to the ordinary rate of insurance upon goods not hazardous.
The plaintiffs obtained a verdict and judgment for $1,294, being the amount insured upon the goods, with interest, from which judgment the defendant appealed.
1. The first question relates to the affidavit of the plaintiff, J. A. Eggleston, one of the firm of Lawrence & Co., which the plaintiffs were permitted to read to the jury. The 8th condition of the policy required the insured to deliver an account of their loss, with their oath or affirmation, declaring the account to be true and just and several other facts. The defendant denied that the plaintiffs had complied with that condition. Eggleston's affidavit was admissible to prove such compliance, but for no other purpose; and the court below should have so informed the jury.
2. The next question relates to the effect of the alleged promise by defendant's agent to pay the loss upon the goods. The court below instructed the jury, in substance, that though the policy had ceased to have any force or effect, by reason of the plaintiffs having kept prohibited articles in the house, yet, if the defendant's agent, having authority to adjust and pay losses, with knowledge that the prohibited articles were kept in the house at the time of the fire, promised to pay said loss, that they must find for the plaintiffs. This we conceive was erroneous for two reasons: First. Authority to the agent to adjust and pay losses, would not give him a right to pay out the money of the defendant where no loss had been sustained, much less to bind the defendant by a promise to do so. Secondly. Conceding the most ample authority to the agent to bind the defendant, yet, if the policy was void at the time of the fire, there was no consideration for the promise to pay the loss. We are not prepared to admit that the premium paid to the defendant, in consideration of its agreement to assume the risk, formed even a moral consideration for its promise to pay a loss sustained by the plaintiffs after they had vitiated the policy by violating its conditions. As this instruction was given at a former trial, at which the plaintiffs obtained a verdict for $1,200, that verdict was properly set aside by the circuit judge, though not for that reason.
3. It is contended that the policy was void because J. B. Lawrence & Co. did not own said storehouse, and that the court below erred in refusing so to instruct the jury.
Whether or not the insurance upon the house was void, we need not decide. Conceding that it was, it does...
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