195 Ky. 504 | Ky. Ct. App. | 1922
Opinion of the Court by
-Affirming.
This appeal presents but one major question: Do certain policies of burglary insurance issued to, or assigned to the Union Bank of Berry, Kentucky, cover and protect said institution against loss by theft of bonds and other securities deposited in the safe of said bank but on the outside of the burglary proof screw door compartments therein? The question arose in this way: The Farmers Deposit Bank and the Deposit Bank of Berry were consolidated in 1919, under the name and style Union Bank of Berry. Before the consolidation each of the banks carried a certain amount of burglary insurance which was, by consent of the insurance companies, assigned to the Union Bank of Berry. At that time, however, the Union Bank had a large number of Liberty bonds and other securities belonging to its patrons deposited in safety boxes in one of the banking institutions of Cincinnati, and desired, on account of the inconvenience of going to Cincinnati to look about the bonds, to bring them to the bank at Berry so that its patrons might have easy access to their bonds. To save the bank harmless in case of burglary or holdup the directors of the institution decided to take out a larger policy of burglary insurance. Some of the members of the board of directors suggested that the amount of the policy be fixed at $50,000.00 or $80,000.00. At that time one Garnet Kemper was cashier of the bank. For about fifteen years before that time he had been and was then the agent of the appellee, National Surety Company, in Berry, for the solicitation of insurance business for that company. The directors of the bank held a meeting, and after discussing the amount of insurance which the bank should take in order to protect its funds as well as the securities, finally agreed upon $25,000.00, and the board instructed Garnet Kemper, its cashier, to obtain for it a policy to the amount of $25,000.00 insuring it against
On December 14th, and after the policy had been delivered, Kemper wrote the insurance company: “I now hand you my check for $39.38, less commission, in payment of burglary insurance policy No. B406499, and pleased to say it went through without the slightest trouble. We want you to issue us $7,000.00 general burglary policy on January first for one year, and will wish to cancel the $3,500.00 policy wrote for us some months ago, provided it can be done pro rata. Kindly issue policy, if so, and send to us with bill. On January first old policy will be returned to you.”
On November 12, 1911, the insurance company wrote to Kemper: “The above numbered policy for $25,000.00 covering on securities while contained in a Victor safe, will expire on November 25, 1919. This policy includes protection against burglary and holdup. . . . Before writing the new policy please let us know whether the Liberty bonds and other securities are kept in the Victor safe or in another safe. If in another safe, please give its maker’s name and number, so that we may properly identify it. Upon receipt of this information we will prepare and mail you renewal policy.”-
It is the contention of the Berry Bank that the policy of burglary insurance for $25,000.00 issued to the Union Bank of Berry, covered and included not only the money and securities inside of the steel safety box or compartments protected by the screw door, but also all securities within the vault on shelves which surrounded the foregoing screw door safe. This is denied by the insurance company, which says that the policies protected the bank only to the extent of ten per cent of the value of the
On March 26,1920, while the said policies of insurance were in force the safe of the bank was burglarized and the securities which had been deposited therein by patrons, but left on the outside of the. screw door compartment of the safe, amounting to $13,675.00, were stolen. The bank made claim upon the insurance company, under its policy, for the loss of its securities, but was informed by the insurance company that the policy as issued contained a provision limiting its liability to ten per cent of the face of the policy on securities which were outside the screw door compartment.
"Whether the liability of the insurance company is confined to ten per cent of the amount of the policy on all securities left on the outside of the screw door of the safe depends, in part, upon the terms of the contract of insurance, and in part upon the question of whether Kemper, who was cashier of the bank and was instructed by its board of directors to obtain for the bank a'policy of burglary insurance to the amount of $25,000.00, was the agent of the bank or merely the agent of the insurance company. The policy of insurance, after stipulating that the National Surety Company, as insurer, “Does hereby.agree to indemnify the bank for all loss of money and securities from within any safe or vault to which insurance under this policy applies, caused by the felonious abstraction of the same during the day or night by any persons after forcible entry by such person or persons or any accomplice thereof into the safe or vault while duly closed and locked, located in the banking room described in the schedule and hereinafter called the premises, or while located elsewhere after removal from within the premises by thieves, or robbers, or their accomplices, further provides that in the event that the said safe or safes or vault, are not locked by time lock, the company shall not be liable for loss of said money and securities feloniously abstracted therefrom, unless said forcible entry is .made therein by_ the use of tools, explosives, chemicals or electricity directly thereupon, ... ” Another provision of the insurance contract: “For all loss by damage to said money and securities, and to said safe or safes or vault, described in said schedule, or to the premises", or to the office furniture and fixtures therein, caused by such persons while making or attempting to make such entry into said premises, vault,
One of the special agreements referred to is section 10 on the back of the policy, which reads: “10% and no more of the amount of insurance attaching specifically on contents of amy safe containing an inner steel burglar proof chest shall automatically apply, if the safe is burglar proof, on money and securities in said safe outside of its inner chest, and if the safe is fireproof only then said 10% and no more shall apply on securities, silver and subsidiary coin inthe safe outside of its inner chest.”
We are constrained to the view, all the evidence considered, that Kemper was the agent of both the insurance company and the bank in the matter of obtaining the policy of insurance. The bank took the matter up with Kemper before he applied for the policy and engaged him on behalf of the bank to obtain a policy of $25,000.00 for the bank against loss through burglary. The officers of the bank say that -they instructed Kemper to obtain the insurance and he did so at their suggestion, and after obtaining the policy he brought it into a meeting cf. the directors of the bank and told them that the policy was the kind they had applied for and gave them all the protection they sought, and recommended that they accept the policy which was done by the board of directors. The insuralnce company received the premium. At the same time he was acting as agent for the insurance company with the knowledge of thé said insurance company that he was cashier and agent for the bank. The bank knew that Kemper was the agent of the insurance company and had been.such for a number of years. Where one party engages an agent, knowing he is the agent of the other party, the agent then becomes the representative of both parties. Bank of Glasgow v. Springfield Ins. Co., 49 Pac. 329; 2nd Corpus Juris pp. 712 and 713. McDoel v. Ohio Improvement & Contract Co. Assignee, 18 K. L. R. 294; R. H. Wilderger v. Hartford Fire Insurance Co., 28 L. R. A. 220; 21 R. C. L. p. 829; 77 Am. Dec. 416.
It seems clear that Kemper was both the agent of the bank and the insurance company for the purpose of obtaining the $25,000.00 policy of burglary insurance. It follows therefore that his acts were the acts of the bank as well as of the insurance company. He had authority
The judgment entered by the- lower court is- for a sum equal only to that which the insurance company offered to confess, and was- not prejudicially erroneous as to appellant. It must therefore be affirmed.
Judgment affirmed.