123 Ky. 478 | Ky. Ct. App. | 1906
Lead Opinion
Opinion by
Reversing.
On October 8, 1903, appellant’s local agent issued to appellee a policy of insurance for $1,200 on hay and grain in its warehouse at Janesville, 111. The policy among other things, contained this clause: “This policy shall be canceled at any time at the request of the insured or by the company by five days’ notice of such cancellation.” On October 16th the company wrote its local agent the following letter: “We are obliged to recall this policy as we are not writing hay, or building containing the same, under any condition. Kindly take up, and return policy for cancellation immediately.” The local agent, Cox received the letter on the 17th, and on that day submitted the risk to another company. The risk was declined. On the 19th he submitted it to a second company, and on the same day he went to Janesville to get the policy he had issued for appellant. He there met Gordon, the agent of appellee. What Cox says took place between them is as follows: “Q. Just tell as near as you can what passed between you and him in respect to the policy on that day? A. I stated to him the order from the Citizens Insurance Company to cancel, and also that he had submitted it to the Northern, and that I had come down to get the policy, and he said he couldn’t give it to me because it had been sent to the Henderson Company. I went with him around the building, and made a diagram of the building, and used it after-wards with the other insurance companies. He asked then if he wasn’t entitled to some time — five days’ notice. I said: ‘Yes, I can give you the five days’
' The company to which application had been made to take the risk declined to take it. Cox then applied to a third company to take the risk. This company agreed to take the risk for $600, but declined to take it for $1,200. On October 30th a policy for $600 in this company was issued, and mailed to appellee. That night the property burned. The next morning Gordon brought the policy issued by appellant to Cox’s office and delivered it, saying nothing about the fire. He was told that the policy that had been sent him was for only $600, and that they were trying to place the other $600, but had not been able to do so. He said that if it was placed, he would expect them to divide the commission with him as before. Gordon says that he did not tell them about
Cox was agent of the company with power to write insurance, and issue policies. It was within the appar- ■ ent scope of his authority to determine how long the policy should be in force in the absence of some restrictions upon his authority, and Gordon had a right to deal with him upon the faith of his apparent authority, unless he had notice of the restrictions which had been placed upon him. If Cox had said to Gordon that he would have to cancel the policy but that he would give him two weeks to get other insurance, Gordun would have had a right to suppose that as he had authority to issue policies, he had authority to make
Judgment reversed, and cause remanded for a new trial.
Rehearing
On Rehearing.
In lieu of the instructions given, the court, under the evidence, should have instructed the jury, that: (1) They should find for the plaintiff unless they believed from the evidence that defend
The petition for rehearing is overruled.