105 Ky. 253 | Ky. Ct. App. | 1899
delivered the opinion of the court.
The parties are corporations, — the appellant an insurance company, the appellee engaged in the milling business. The appellee was desirous of taking out insurance policies, — one for its own protection, and one for the protection of its employes. It therefore made application to the appellant for two policies of insurance, — one known as the “Workman’s Collective Policy,” the other, as “Employers’ Liability Policy.” About the 18th of October, 1892, after some negotiations, applications were made for these policies.
This controversy is not in regard to a liability on the “Employers’ Liability Policy” or Contract; hence it is unnecessary to state the terms of such policy or contract. The “Workman’s Collective Policy,” for which application was made, is one by which the appellant agrees to pay one year’s full wages to the party injured in case of death, and one-half wages in fifty-two weeks for certain injuries. This policy was to be issued to the appellee for the benefit of its operatives. One of its operatives, Albert Heil, while in the discharge of his duties, was killed on October 27, 1892; and, on the day following, the appellant gave it notice that the application for the policy had been rejected. So, the employe lost his life between the date of the application and the notification of its rejection, although it appears that the appellant’s agent, in Louisville, had received notice of the rejection of the application before the accident.
It was held in Phoenix Insurance Co. v. Spiers & Thomas, 87 Ky., 293, [8 S. W., 453], that a “contract of insurance may be by parol. It is not within the statute of frauds. Such a contract, although in writing, may be changed by
It was said in Walker v. Metropolitan Insurance Co., 56 Me., 376: “At common law, contracts' of insurance are placed on the same footing with other contracts, in respect to the capacity of the parties to contract, the subject-matter of the contract, and the mode of contracting. * * It being competent for the defendants, as we have seen, to make a contract of insurance without issuing a policy, the decision of this question must depend upon the intention of the parties, as shown by their acts and declarations. * * *”
Chancellor Walworth said, in Sandford v. The Trust Fire Insurance Co., 11 Paige, 556: “I have not been able to find anything in the common law of England rendering it absolutely necessary that contracts for insurance should be in writing.”
In Union Mut. Ins. Co. v. Commercial Mut. Marine Ins. Co., 2 Curt., 545, [Fed. Cas. No. 14,372], it was held that there was nothing in the common law which required the insurance to be in writing.
It was said in Commercial Mut. Marine Ins. Co. v. Union Mut. Ins. Co., 19 How., 318: “The common law must therefore determine the question; and, under that law, a promise for a valuable consideration to make a policy of insurance is no more required to be in writing than a promise to execute and deliver a bond, or a bill of exchange, or a negotiable note. So i.t has been hold by other courts, and, we think, on sound principles.”
The case of Tayloe v. Merchants’ Fire Insurance Co., 9 How., 390, was an action in equity to compel the delivery of the policy which it was
In the absence of a statute so requiring, or a provision of the charter providing for the contrary, it is not necessary that a contract of insurance should be in writing. If parties have agreed to the terms of insurance, but the policy has not been issued, the insured could proceed in a court of equity, and compel the company to issue the policy. When a loss intervenes between the time the terms of insurance are agreed upon and .the delivery of the
We think the instructions were sufficient to submit to the jury the questions involved as made by the pleadings and evidence. If the beneficiaries, under the contract, should have been made parties plaintiff, the question should have been raised by special demurrer. Having failed to make the question in that way, it can not now be made. Besides, we are of the opinion that the plaintiff is the trustee of an express trust, and it is not necessary, under section 21, Civ. Code Prac., to join with it the person, for whose benefit the action is prosecuted. The appellant did not ask that it be credited with any sum on account of premium due; hence can not complain that none was given. The judgment is affirmed.