Springfield Fire & Marine Ins. Co. v. Gray
| Decision Date | 29 May 1953 |
| Citation | 258 S.W.2d 715 |
| Parties | SPRINGFIELD FIRE & MARINE INS. CO. v. GRAY. WESTCHESTER FIRE INS. CO. v. GRAY. |
| Court | United States State Supreme Court — District of Kentucky |
Ogden, Galphin & Abell, Louisville, Stoll, Keenon & Park, Lexington, for appellants.
C. W. Fulton, Flemingsburg, Andrew Fox, Maysville, for appellee.
The present appeal marks the second appearance of these cases before this Court. The first opinion, reported in 240 S.W.2d 825, contains a complete statement of the facts, and we shall not repeat them here.
On the first appeal, it was held that the insured had failed to substantially comply with the inventory and iron safe provision of the policies and that such noncompliance would defeat recovery unless there had been a waiver of the provisions in question by the agent for the insurers. Upon the second trial, the question of waiver was submitted to the jury and a verdict was returned in favor of the insured. The sole question now presented is whether or not the facts shown are sufficient to constitute a waiver of the inventory and iron safe provision of the policies.
Appellee testified that he approached Marion Rhodes, the agent for the appellant companies, and asked for insurance on his stock of goods. He testified that the terms of the policies were not discussed and he was not advised as to any requirement for making and preserving an inventory or keeping a record of his sales and purchases. He further stated that no inquiry was made as to his method of bookkeeping or the type of place he had in which to preserve his records. The agent was also an employee of a bank with which appellee had done business, and it is insisted that he knew that country merchants generally and appellee particularly, with whose education and business methods he was especially acquainted, did not maintain the type of records required by the policies.
This Court has repeatedly, and without a single exception, held that before there can be a waiver of a condition in an insurance policy the insurance company or its agent must have clear knowledge of the facts upon which the waiver is based. In the early case of Germania Life Insurance Co. of New York v. Lauer, 123 Ky. 727, 97 S.W. 363, 364, it was said:
'When a party seeks to avoid a condition in a contract that would defeat its enforcement by a plea that the condition was waived, he must show that the person whose acts are relied on to establish the waiver had knowledge of the essential facts necessary to enable a person of ordinary prudence and judgment to act understandingly.'
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State Auto. Mut. Ins. Co. v. Spray
...must have had "clear notice" of the true facts in order to be held to have waived any policy conditions. Springfield Fire & Marine Ins. Co. v. Gray, Ky., 258 S.W.2d 715, 716 (1953); Citizens' Ins. Co. of New Jersey v. Railey, 256 Ky. 838, 77 S.W.2d 420, 422 The question of whether State Aut......