Northwestern Nat. Ins. v. Avant

132 Ky. 106 | Ky. Ct. App. | 1909

Opinion op the Court by

Judge O’Rear

Reversing.

Appellee was insured against loss of her property by fire in a policy issued by appellant company in the sum of $500. The policy contained this provision: “This entire policy unless otherwise provided by agreement, and endorsed thereon, or added thereto, shall be void if the insured now has or shall hereafter make and procure any other contract of insurance, whether valid or not, on property covered in whole or in part by this policy.” Subsequently appellee obtained another policy of insurance upon the same property for $100 to be written by another company. The house containing the insured furniture was burned, together with its contents. This suit is upon the first policy. The company set up the clause quoted above and tbe obtention of the second policy without its assent as a defense. In avoidance of that defense, appellee claims that a few days after she obtained the policy in suit she notified appellant that she would probably want other insurance on the property, and appellant’s agent with whom the contract was made assured her that it would be all right, and solicited her to take out the insurance with him.

Provisions of the character of the one quoted are familiar and wise regulations of the business óf fire insurance. It is to prevent overinsurance, which might tempt the insured either to burn the property or to be less vigilant in protecting it against fire than he would be if the property was not. insured to excess. Those provisions are upheld as a valid subject of the contract, and one which it is the policy of the law to encourage. If the parties to the contract agree that other insurance may be written upon the property, then the provision against other insurance is eliminated from it. The law does not require such agreement to be in writing. Although the policy of insurance stipulates that, unless the agreement for other insurance is in writing, it shall not be binding upon the company, that provision is not .binding, as it is not competent for a man to bind himself that he will not be bound by a valid — that is, lawful-contract. The policy, of the law is that certain contracts must be in writing to be valid, while all others may be in parol. The parties cannot agree so as to bind themselves either that contracts which the law requires to be in writing shall be valid though in parol, and in spite of the law, nor that contracts which the law allows to be in parol shall not be valid unless in writing. Parties cannot by contract alter the law. Hence if the agreement in fact was that other insurance might be procured by the insured, that agreement is valid, though not in writing, if it is sustained in other respects. Nor does the parol agreement change or modify the written agreement. The latter itself provides for a subsequent modification. No other consideration than that supporting the original contract is needed to support the subsequent agreement. The written policy provides' a condition upon which it shall become void. It also contains a stipulation as to how that condition shall be waived. The condition is that the insurer shall assent to the additional insurance. If the insurer does not assent to it, either by express agreement, or by conduct implying such assent, then the condi-’ tion is waived. If the agent who acted for the insurer in effecting this insurance at the time or while acting as such agent assented in writing indorsed upon or added to the policy that other insurance might be obtained upon it by the insured, it would not be doubted that his action would have bound the insurer. We have seen that the assent does not have to be in writing to be binding. Such are the authorities. Commercial Union Assurance Co. v. Urbansky, 113 Ky. 624, 68 S. W. 653, 24 Ky. Law Rep. 462; Brumfield v. Union Insurance Co., 87 Ky. 122, 7 S. W. 893, 10 Ky. Law Rep. 13. If subsequent to the issual of the policy the appellant by its agent then representing it assented that the insured might take out additional insurance upon the property, the condition against other insurance was waived. Whether there was such assent is a question of fact, to be determined by the jury. The evidence for appellee is that the agent with whom the contract was made a few days after the policy was issued was informed that the insured desired' later to take out additional insurance upon the property, and he said it was all right, and that he would like to have the opportunity to write it. But before appellee was ready to take the additional insurance the appellant withdrew its agency from Mayfield, and the agent removed to another point. If such be the facts, the jury would be warranted in our opinion in finding that there was an assent by the appellant company that appellee might take out additional insurance.

The court submitted the. question at issue to the jury in this instruction: “The court instructs the jury they should find for the defendant unless they believe from the evidence that defendant’s agent, Dupree, knew that plaintiff was contemplating taking out additional insurance to the amount already written by him, or that he solicited her to take such additional insurance, in which event you should find for the plaintiff, etc. This instruction did not submit to the jury the necessary fact to be determined. That the agent knew the insured contemplated taking additional insurance is in no sense a waiver of the provision that before such additional insurance would be allowed it must be by the insurer’s assent; otherwise, the insured could in spite of the insurer’s will or assent take' out further insurance, thereby increasing the risk to the insurer. As the jury may have found their verdict upon that feature of the instruction alone, we think the instruction was prejudicial to the appellant. If appellant’s agent solicited the additional, insurance, that conduct might be regarded as a waiver of the condition against additional insurance, or it might not. That is for the jury to say.

The judgment is reversed, and cause remanded for a new trial under proceedings consistent herewith.