142 Ky. 732 | Ky. Ct. App. | 1911
Opinion of the Court by
Affirming.
Tn the year 1905 or 1906, appellee John. B. Terrell erected in the city of Paducah a brick livery stable 57
“'$1,000 on his two and one-story brick, gravel roof "building, including foundations, piping, plumbing, lighting, glass and all permanent fixtures as a part of said "building, situated on the north side of Jefferson street, between 4th and 5th streets in the city of Paducah, Ken-lucky, and occupied as a livery, sale and feed stable.
“Additional insurance permitted. Lighting clause -attached. Warranted that no open lights shall be used about the premises, and that no smoking shall be allowed inside of said building.”
About two years before this policy was issued, A. 'Sidney Terrell, appellee’s brother, erected on top of the roof of the rear portion of the building a room 18 feet wide, 60 feet long, and 10 or 12 feet high, with a metal roof. This additional room was constructed by extending the east of the brick wall some 14 feet higher, and by placing on the original timbers of the building other material. . The understanding between appellee and his brother with reference to this additional building was that his brother was to erect it and use it as long as he desired, and in the event he ceased to use it he had the night to tear the addition down or let it remain and become the property of appellee. The room so constructed was known and is referred to in the record as the “Sid Terrell addition.” Upon the completion of this ■additional room, the agents of the Rochester German Insurance Company applied to Sidney Terrell to take insurance upon the room to protect his own interest. This he agreed to do in the sum of $400. Before the policy was written, however, Sidney Terrell and the agent of the Rochester German Insurance Company had another «conversation in regard to how the policy should be writ
While these policies were in force a fire occurred, which damaged the original building to the extent of $222.22, and the Sid Terrell addition to the extent of $400.08. Soon after the fire an estimate of the loss was made out, and appellee settled with appellant for the sum of $222.22. This settlement was made in the belief that appellee’s policy covered only the original building, while that of his brother covered only the addition constructed by him. At the time the settlement was made, appellee made a statement in writing that the policy of $1,000 in appellant company was all the insurance he had on the stable, but that he understood that his brother, Sidney Terrell, had a policy of $400 to protect his interest on account of the wareroom which he had placed on top of the building. At the same time, he stated that he had no interest in the wareroom and no interest in the policy of insurance which his brother had procured. He also signed a release acknowledging full settlement of any and all claims for damages which he had against appellant company. On the night of the day on which this, settlement was effected, appellee learned that his brother’s policy in the Rochester German Insurance Company was concurrent insurance on the whole building. He then demanded .of appellant’s agent a rescission of the agreement. Appellant’s agent had sent the papers to appellant’s home office. Appellee then telegraphed appellant to the effect that he desired to rescind the settlement. Some time later appellee tendered to appellant additional proof of loss, in which he claimed and demanded the sum of $622.50, and tendered to appellant Ihe $222.22 paid by it to appellee in the settlement made September 28, but appellant declined to take any action in the matter.
When tbe court announced its decision before judgment was entered, appellant filed an amended answer and cross-petition asking that tbe Rochester German Insurance Company be made a party, as it bad a policy which, by mistake, was written so as to cover the entire building instead of tbe Sid Terrell addition, which it was intended to cover. Tbe court declined to permit tbe amended answer and cross petition to be filed.
One of the principal contentions of appellant is that its policy as a matter of fact covered only tbe building as originally constructed, and never embraced tbe Sid Terrell addition; and that, therefore, it is not liable for any ¡oart of tbe loss on that addition. Tbe law is well settled that, in tbe absence of a plea and showing of fraud or mistake, tbe intention of tbe parties to a written contract must be gathered not from what tbe parties, said or did, or thought they intended, but from the contract itself. Here tbe Sid Terrell addition bad been upon. the building insured for about two years when tbe policy sued upon was issued. It is true, tbe policy describes, tbe building insured as a “two and one-story brick,, gravel roof building;” but did this description neeesr
In the same connection it is insisted that the- Eochester German Insurance" Company alone is liable for loss on the Sid Terrell addition, it being argued that the intention of Sidney Terrell was to secure a policy covering that -addition, and that by mistake it covered the entire building. The proof, however, does not sustain this contention.' It clearly established the fact that it was agreed ■fo issue a policy in the name of John B. Terrell upon the entire building and let him and Sidney Terrell, in case of loss by fire, adjust their respective interests between themselves. With this understanding the policy was so issued. '
It is perfectly clear that the settlement was inadé under such circumstances that the law will not permit it •to stand. Appellee believed that his policy in the appellant company covered only his portion of the building. He also believed that his brother’s policy in the Eoches
) Appellant was not prejudiced by the court’s action in striking out a part of its answer. In its amended answer, it set up substantially the same claim, i. e., that the policy of the Rochester German Insurance Company covering the property in question was for the amount of $400, and that appellant was not liable in any event in excess of 10-14ths of the total loss. The court, in its judgment, gave appellant the benefit of this plea.
Appellant’s offer, to file an amended answer and cross-petition, making the Rochester German Insurance Company a party, came too late. It knew of the existence of the policy in that company at the time settlement was made, and it had abundant opportunity to make that company a party had it so desired. Under these circumstances a party to an' action will not be permitted to wait until the court is 'ready to announce its decision, and then insist on bringing in another party whom by the 'exercise of any kind of diligence he could have brought in long before.:
<■ ■ But it is insisted that the court erred to appellant’s nrejudiee in transferring" the case to equity, and refusing to re-transfer It; upon appellant’s motion, back to the- common-laW docket.:' The Code permits a transfer to •the eqnity docket wher:e: the court is of-Opinion that- such transfer is necessary'ibecatise nf the- 'peculiar -questicfns involved, or because the easel involve# accounts :-só/eoní
Appellant further complains of the fact that, by the judgment in question, it is compelled to pay the $444.50 in addition to the $222.22. This, however, is not the case. The $222.22 is now in court under an order directing-the commissioner to pay it to the appellant. To satisfy the judgment, all that appellant will have to do- will be to withdraw this money, add to it the difference between it and the total amount of the judgment, and pay the whole sum over to appellee.
Without detailing the evidence upon the numerous questions of fact involved, we conclude that the evidence fully justifies the finding of the chancellor.
Judgment affirmed.