117 Ky. 583 | Ky. Ct. App. | 1904
Opinion op the court by
Reversing.
The appellee, S. Y. Trimble, brought this actiou on the 2d of March, 1901, in the Logan circuit court, against the Hartford Fire Insurance Company, of Hartford, Conn., the Commercial Union Assurance Company, of London, England, and H. B. Caldwell, alleging that the defendant Caldwell was the agent of both of the defendant insurance companies at Russellville, Ky., during the year 1898; that during the latter part of August or the first part of September, 1898, he made, through his agent, H. L. Trimble, a verbal contract with the defendant Caldwell, as agent of his co-defendants, to issue to him a policy of insurance on a brick dwelling house ■owned by him, which was located on Morgantown street, for $400; that the policy was to be issued at the expiration of a policy which he then held on the) same property for the same amount in another insurance company, which expired an the 21st of July, 1899, but he alleges the defendant ■Caldwell, who was at that time the cashier of the Logan County Bank at Russellville, Ky., in which he kept an account, failed to comply with the alleged verbal contract, or to ■execute, issue, or deliver the policy of insurance contracted for; that on the 4th of March, 1900 during the period which -was to have been covered by the policy, the house burned up;
On motion of defendants, plaintiff was required to elect against which of thei defendants' he would prosecute his alleged action. This he declined to do. Thereupon the court, electing for him, dismissed the petition against H. B. Caldwell and the Commercial Union Assurance Company, and permitted the action to proceed against the Hartford Fire Insurance Company. The plaintiff thereupon filed an amended petition, in which he made the same ¿negations against the Hartford Fire Insurance Company as were made in the original petition against each of the defendants therein, and alleged that the amount of the premium contracted to he paid for the insurance policy was to be charged by Caldwell to the account of H. L. Trimble in the bank when the policy was to be issued, in July, 1899. The defendant interposed a general demurrer to the petition as amended, and filed an answer denying every allegation of the amended petition. The case was subsequently transferred by consent to the equity docket, and was decided by a special judge in. May, 1902, who gave the judgment against the Hartford Fire Insurance Company for $400, with interest from March 2, 1901, until paid; and the defendant prosecutes an appeal from that judgment, and asks a reversal.
The facts in the record relied on to establish the alleged verbal contract of insurance are, in substance, as follows: Plaintiff, 'Trimble, was the owner of four dwelling houses in Russellville, which were covered by insurance policies issued by Edward Sinclair. He also owned a house in connection with J. S. Stanley, which was insured by John Long, agent. The house which burned was located on Morgantown street, and was one of those insured through the
Tested by the above authorities, the evidence of appellee fails to establish, an enforceable contract of insurance against appellant, the Hartford Insurance Company, for several reasons: First, there is no proof or claim that at the date of the application for insurance there was any agreement on the part of their agent that it was to be placed with the Hartford Fire Insurance Company. The contract therefore fails, under all the rules of construction, for lack of identity in the parties to the contract. But even if Caldwell had actually agreed with H. L. Trimble to insure the house which burned in the appellant company, it would have been unenforceable, because the uncontradicted evidence shows that Trimble had actual notice that Caldwell had no authority from the company to insure houses owned or occupied by negroes. No principle is better settled than, where a third person has actual notice of the limitation upon the power of the agent, that the principal is not bound by any act of the agent done in contravention of' his authority, or in violation of his instructions in dealing with such persons.
We recognize the difference between parol contracts of insurance in praesnti and in futuro but deem it unnecessary to consider this question in the decision of this appeal.
But for reasons indicated, the judgment is reversed, and cause remanded, with instructions to dismiss plaintiff’s petition.
Petition for re-hearing by appellee overruled.