Shawnee Fire Ins. Co. v. Roll

• Decision Date: 26 October 1911
• Parties: SHAWNEE FIRE INS. CO. v. ROLL.
• Court: Kentucky Court of Appeals

140 S.W. 49

145 Ky. 113

SHAWNEE FIRE INS. CO. v. ROLL.

Court of Appeals of Kentucky.

October 26, 1911

Appeal from Circuit Court, Muhlenberg County.

Action by D. M. Roll against the Shawnee Fire Insurance Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Browder & Browder, Taylor & Eaves, and Mulvane & Gault, for appellant.

Jonson Wickliffe & Jonson and R. Y. Thomas, Jr., for appellee.

CARROLL J.

On April 17, 1910, the appellee's stock of goods, situated in a store building in Muhlenberg county, was destroyed by fire. Shortly thereafter he demanded of the appellant insurance company that it pay to him the sum of $1,500, which he contended was the amount of insurance he had with the company on the property under a parol contract made on the 24th of March, 1910, for the term of one year with W. W Bridges, agent of the company. The company denied all liability, and thereafter this action was brought to recover the amount of the policy, and judgment for the full amount entered in favor of appellee upon the verdict of a jury.

The company insists that this judgment should be reversed: First because no parol contract of insurance was entered into between the company and the appellee, or any premium paid; second, because the proof of loss was not sufficient; third, because under the contract of insurance, if one was made, the insured was only entitled to recover three-fourths of the value of the property destroyed; and, fourth, because of error in refusing to grant a change of venue.

The ground that the court erred in refusing to grant a change of venue is not seriously insisted upon by counsel. Indeed, it could not well be, because in making the motion for a change of venue no one of the statutory requirements was observed. Counsel for the company merely filed their affidavit, setting out that the appellee was a kinsman of the sheriff of the county and one of his deputies, and that by virtue of his office he was intimately associated with the juries impaneled in the court for the trial of cases, and thus had such an advantage over the insurance company, a foreign corporation, as would prevent it from having a fair and impartial trial.

Nor is there any merit in the ground that the court erred in refusing to instruct the jury that in no event could appellee recover more than three-fourths of the value of the property. In its answer the company set up in substance that, if it had issued the policy that appellee said it agreed to issue, it would have been stipulated in the policy that in no event could the insured recover more than three-fourths of the value of the property destroyed, which would reduce its liability from $1,500 to $1,185.88. The value of the property destroyed, as proven by appellee, was large enough to entitle him to recover the full amount of the insurance, although the sum to which he was entitled might be only three-fourths of its value, and no evidence was offered on this point by the company, nor was any instruction presenting this view of the case given or requested.

Some question is made in brief of counsel as to the sufficiency of the proof of loss; but, as the company denied from the beginning any liability, proof of loss was not necessary.

Coming now to the real question in the case, which is whether or not any parol contract of insurance was ever made, we will notice at some length the...