Standard Fire Ins. Co. v. Smithhart

• Decision Date: 25 March 1919
• Citation: 211 S.W. 441,183 Ky. 679
• Parties: STANDARD FIRE INS. CO. v. SMITHHART.
• Court: Kentucky Court of Appeals

211 S.W. 441

183 Ky. 679

STANDARD FIRE INS. CO. v. SMITHHART.

Court of Appeals of Kentucky.

March 25, 1919

Appeal from Circuit Court, Henderson County.

Action by Sallie Smithhart against the Standard Fire Insurance Company. There was a judgment for plaintiff, a new trial was denied, and defendant appeals. Reversed and remanded.

John C Worsham, of Henderson, for appellant.

McClain & Pentecost, of Henderson, for appellee.

HURT J.

The appellee, Sallie Smithhart, owned a house in Henderson upon which and its contents she carried four insurance policies in the appellant Standard Fire Insurance Company, which insured her against damages by fire to the house and contents insured. The larger part of the house and its contents were destroyed by fire; and, the appellant company having refused to pay the damages, she instituted this action against the insurance company upon the policies to recover the damages. The trial resulted in a verdict of the jury in her favor, and a judgment of the court in accordance with the verdict. A motion for a new trial was made and denied, and the insurance company appeals.

The only ground upon which a reversal is sought is that an error prejudicial to the substantial rights of the appellant was made by the trial court in excluding from the jury certain evidence offered by the appellant. One of the grounds relied upon by the appellant in the defense of the action was that the burning of the house and goods was not accidental, but was of incendiary origin, and that the appellee procured the house and contents to be burned, with the fraudulent purpose of collecting the amount of the insurance carried upon the house and its contents. This plea was denied by a reply. Upon the trial the appellee stated: That she was not at home at the time the house was burned, but had left her house on the evening before at about 4:30 o'clock, and had gone to Evansville, Ind., for the purpose of seeing a physician. The house was burned during the following night. She left the house in charge of the caretaker, with directions to close the window shutters and to lock the doors of the house. That some days previous to the time mentioned one Gus Stevens came to the door of her house to ask if she desired any painting to be done. That after her return to her home she engaged the services of an attorney to prepare the proofs of the loss and to collect the insurance, and thereafter the attorney informed her that the company declined to pay the damages upon the ground that she had burned the property. The policies were then returned to her by the attorney, and she thereafter secured other attorneys and instituted the suit. The chief of the fire department of the city testified that he arrived at the place of the fire within a few minutes after the alarm had been given, and the house was then ablaze within, and the shutters to as many as two windows upon one side of the house were fastened by nails driven through the foot of the shutters. The caretaker testified that he closed the shutters between three and four hours before the fire but did not fasten them with nails. The house was discovered to be on fire about 1 o'clock in the night. The attorney whom appellee had at first employed was called as a witness by the appellant, and his employment by the appellee, and that he had prepared the proofs of the loss, and his services engaged to collect the insurance upon the policies by suit if necessary, and his submission of the proofs to the company, and its refusal to pay the damages was proven by the attorney. The appellant then offered to prove by the attorney that he informed the appellee of the refusal of the company and the ground upon which it based its refusal, and that she stated to him that she did not burn the house nor have anything to do with its being burned, but that at a time before it was burned John Puckett suggested to her that, as the business in which she was engaged was dull, it would be a good scheme for her to have the house burned, and that he would attend to the burning of it for her. She said to Puckett that she would not have anything to do with setting it on fire, but he said that if she would let him know of a time when she was going to leave town he would attend to the matter, and for her to call him up; that Puckett said further that he would send Gus Stevens to her house, and that Stevens would come with a paint bucket and asked to be shown the house, and for her to let him see the house, and then telephone to him (Puckett) when she was going to be out of the town, and the house would be burned whilst she was out of the town, and that on the afternoon preceding the night upon which the house was burned, and before she left for Evansville, she telephoned Puckett that she would leave for Evansville that night, and would spend the night in Evansville, and that the house burned during that night. Upon the objection of appellee the court refused to allow the attorney to make the statements above stated. It was then offered to be proven by the attorney that the appellee directed him to deliver the policies sued on, to the attorneys for the company, for the purpose of being canceled, and that in accordance with this direction he did deliver the policies to the attorneys for the company, who promised that no criminal prosecution should be instituted against her, but in a short time the attorneys for the company returned the policies to the witness, with an explanation that, because of a disagreement between them and the company, they did not represent the company any further, and that witness could collect the policies, if he desired, and that he then returned them to the appellee. The above-proposed statements were also excluded upon the objection of the appellee.

So far as the offered evidence was a statement of conversations or communications or agreements between the attorneys of the company and the witness they were properly excluded upon well-known grounds, but as regards the statements of the appellee made to the attorney, and which were offered to be proven by him, a question is presented which has not heretofore been determined in this jurisdiction. The witness at the time the statements were made to him by appellee was representing her in his professional capacity as an attorney, with reference to her claim under the policies against the insurance company, and the statements made by her directly related to the...