Aetna Ins. Co. v. Glasgow Elec. Light & Power Co.

• Decision Date: 12 October 1899
• Citation: 107 Ky. 77,52 S.W. 975
• Parties: ÆTNA INS. CO. et al. v. GLASGOW ELECTRIC LIGHT & POWER CO. [1]
• Court: Kentucky Court of Appeals

52 S.W. 975

107 Ky. 77

ÆTNA INS. CO. et al. v. GLASGOW ELECTRIC LIGHT & POWER CO. ^[1]

Court of Appeals of Kentucky.

October 12, 1899

Appeal from circuit court, Barren county.

"To be officially reported."

Actions by the Glasgow Electric Light & Power Company against the Ætna Insurance Company and others on certain fire insurance policies. Judgment for plaintiff, and defendants appeal. Reversed.

Edward W. Hines, Geo. T. Duff, and Lewis McQuown, for appellants.

W. L Porter and W. S. Pryor, for appellee.

BURNAM J.

This is an appeal by nine insurance companies from a judgment against them aggregating $11,500. The appellee instituted nine separate actions to recover damages upon its several policies of insurance, for the alleged destruction by fire of its power house and machinery at Glasgow, Ky. The cases were transferred to equity, consolidated, and referred to a commissioner to report the property insured, its value, and the damage thereto, and, upon final hearing of the exceptions to the report by appellants, the judgment appealed from was entered. Quite a number of alleged errors are complained of.

There are four distinct classes of property insured by each of the policies, as follows: (1) The one-story frame building, in which the machinery was placed, on which the aggregate amount of insurance carried was $2,600. (2) The engine, boiler, and their connections and settings, upon which the aggregate amount of insurance carried was $1,950. (3) All machinery other than electrical, in the building, including tools furniture, and fixtures. The aggregate insurance on this class of property was $2,950. (4) The dynamos, exciters lamps, switches, wire, other electrical appliances, and railway cars and motors contained in the buildings or on the tracks of the road. The total amount of insurance under this clause of the policy amounted to $4,000. Each of these policies contained this limitation with reference to the electrical machinery embraced in the fourth clause: "This insurance does not cover any loss or damage to dynamos, exciters, lamps, switches, or motors, caused by electric current, whether artificial or natural." Each of said policies also contained this stipulation, which follows the third clause of the policy: "It is a part of the consideration of this policy, and the basis upon which the rate of premium is fixed, that the assured shall maintain insurance on the property above described to the extent of four-fifths of the actual cash value thereof, and, failing so to do, the assured shall be an insurer to the extent of such deficit, and in that event shall bear a proportion of any loss. This clause shall apply to each item above described separately."

The first point relied upon for reversal is that appellee does not allege in any of the petitions that the loss or damage to the property covered by the fourth clause of the policy was not caused by an electrical current. It is insisted that it was necessary for each petition to have negatived this condition, and in support of this contention we are referred to the case of Accident Co. v. Carson (Ky.) 36 S.W. 169. That was a case on an accident insurance policy to recover the full amount thereof for the death of the insured, who was killed in a mutual affray. In his application the insured, in that case, described himself as a druggist, and agreed that, if he was killed in any occupation or exposure classed by the company as more dangerous than that of a druggist, his beneficiary was to get only a reduced sum. The occupation of the assured was one of the cardinal conditions upon which the policy was issued, and in that case the court held that it was necessary that the beneficiary should allege whether the assured was engaged at the time of his death in a more hazardous occupation or exposure than that of a druggist. But in this case the provision of the policy relied upon is not a condition precedent to the right of recovery. It does not stipulate for the performance of some act to be done on the part of appellee, or the happening of some event, before the contract shall take effect. It provides only for an exceptional case, in which appellants shall not be liable under the contract of insurance. The plaintiff is not required to anticipate defenses by alleging that the loss was not produced by any causes for which it is provided that the insurer shall not be liable. These are matters that are to be pleaded by the defendant. See 11 Enc. Pl. & Prac. p. 414.

It is also insisted that one or two of the petitions are defective in allegations of ownership by appellee of the property at the time the policy was issued or at the time it was destroyed, and that the court erred in overruling appellants' demurrer upon this ground. The question of ownership was put in issue by the answer, and the error complained of was fully cured by the judgment.

The next ground relied upon by appellants is that the court erred in refusing to allow them to file an amended answer after the report of the commissioner under the order of reference, in which they sought to rely upon that provision of the policies which followed the first, second, and third items thereof which required the assured to maintain insurance on the property to the extent of four-fifths of the actual cash value thereof, and in failing so to do to be an insurer to the extent of such deficit, and in that event bear a proportion of any loss. ...