Rogers v. Farmers' Mutual Aid Association
| Decision Date | 14 April 1899 |
| Parties | Rogers v. Farmers Mutual Aid Association. |
| Court | Kentucky Court of Appeals |
APPEAL FROM MASON CIRCUIT COURT.
E. L. WORTHINGTON FOR APPELLANT.
A. M. J. COCHRAN FOR APPELLEE.
JUDGE BURNAM DELIVERED THE OPINION OF THE COURT.
The appellee, the Farmers' Mutual Aid Association of Mason county, issued to appellant a policy of fire insurance on his dwelling house, for $250, about the 18th day of October, 1893; the value of the dwelling being fixed by the soliciting agent of the insurance company at $375; the policy being for two-thirds of the amount of such valuation. The first restriction in the policy provides that no house or other property will be insured for more than two-thirds of its cash value; the second restriction provides that "members of this company" may seek protection in other companies, provided their insurance does not exceed, in the aggregate, two-thirds of the value of the building thus insured and by-law No. 17, which was also attached to, and made a part of, the policy, provides that any party desiring insurance on contents or property must make it known to the secretary, in writing, before insuring in other companies.
On October 9, 1895, the house covered by the policy was destroyed by fire; and, upon the refusal of appellee to pay the insurance covered by the policy, this suit was instituted. Appellee sought to avoid liability on the ground that, while the policy was in full force, the appellant, in violation of the by-laws and restrictions contained therein, took out additional insurance on his property in The Phoenix Insurance Company to the amount of $200, which additional insurance was in force at the time of the loss; it being contended that this violation of one of the restrictions of the policy forfeited all rights to indemnity growing out thereof.
Appellant, in his reply, pleads first that the violation of the restrictions as to the amount of insurance did not render the policy void, because the policy itself did not so provide. And he also pleads that at the time the policy was in full force, and when there was no other insurance on the property, he applied to The Mason County Building and Saving Association to borrow from it $200, proposing to execute a mortgage to secure this loan on his property, but that the association refused to make any loan thereon unless plaintiff would take out a policy of insurance in some regular insurance company, which was to be left with them as an additional collateral to protect them on such loan, and that thereupon, and to enable him to borrow the money on the property, he took out a policy of insurance in The Phoenix Insurance Company for $200, and that within one week thereafter he notified William Rowe, the solicitor of the company who delivered the policy sued on to him, and who was the agent of the defendant at the time the additional policy was taken out, that he had taken out the additional policy, and stated to him the reasons which induced him to do so, and requested Rowe to let him know at once whether defendant would claim that this additional insurance avoided the policy, and that Rowe assured him this policy in defendant company would remain binding, and that on several different occasions thereafter the defendant company assessed him on account of other houses insured in said company that had been burned down, and collected from him his proportion of the losses resulting therefrom; that the only officers of the defendant company were a President, Secretary, and four Solicitors; that, at the time of the issuing of the policy, William Rowe was, and had continued to be, one of these solicitors, and that he was authorized to solicit insurance, make contracts therefor, and sign and deliver policies; that Rowe so acted during all the time between the issual of the policy to him for the district in which his house was located; and that the defendant had notice of the additional policy of insurance, and of the circumstances under which it was taken out.
A demurrer was sustained to both paragraphs of the reply, and, appellant declining to plead further, his petition was dismissed and from that judgment this appeal is taken.
The questions to be determined are: First, whether the breach of the restriction as to the amount of insurance which plaintiff...
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