Bindell v. Kenton County Assessment Fire Ins. Co.

• Decision Date: 13 March 1908
• Citation: 108 S.W. 325,128 Ky. 389
• Parties: BINDELL et al. v. KENTON COUNTY ASSESSMENT FIRE INS. CO.
• Court: Kentucky Court of Appeals

108 S.W. 325

128 Ky. 389

BINDELL et al. v. KENTON COUNTY ASSESSMENT FIRE INS. CO.

Court of Appeals of Kentucky.

March 13, 1908

Appeal from Circuit Court, Kenton County.

"To be officially reported."

Action by Charles H. Bindell and others against the Kenton County Assessment Fire Insurance Company. Judgment for defendant. Plaintiffs appeal. Reversed, with directions for a new trial.

Schmidt & Holmes, for appellant.

Frank M. Tracy, for appellee.

CARROLL J.

In this action to recover upon a policy of fire insurance the defense was that the property insured was destroyed by the voluntary act of the insured, who died before the case came on for trial. His personal representatives filed the following reply to this answer: "(1) They deny that the fire which destroyed said barn was started by said Charles Bindell deceased, or the said barn was destroyed as a result of the voluntary act of the said decedent. (2) They state that if the fire which destroyed said barn was started by said Bindell, or if said barn was destroyed as a result of any act of said decedent, he was at the time temporarily insane and incapable of forming any wrongful or fraudulent design. They state that one of said defenses is true, but that they do not know which of them is true." The lower court sustained a demurrer to the second paragraph of this reply, and of this ruling appellants complain.

There is no clause in the policy of insurance providing that the company should not be liable if the property was destroyed by the insured. The absence, however, of such a stipulation would not render the company liable if the destruction of the property was caused by the voluntary, fraudulent, corrupt, or wrongful act of the insured. The paragraph of the reply in question is not aptly pleaded. It would have been more in accordance with the rules of good pleading if it had stated that Bindell, if he burned the barn, did not at the time have mind enough to know the nature or quality of his act, and was laboring under such defect of reason as not to be responsible for his conduct, or that, as a result of mental unsoundness he did not have sufficient will power to know right from wrong or govern his actions. But, although technically defective, we are not prepared to say that the pleading was not sufficient, and will therefore treat the paragraph as if it averred in apt language the insanity of the insured at the time he burned the barn. We have not found any Kentucky case dealing with the question here presented, although it has been often considered in life insurance cases; and in such cases, where the policy exempted the company from liability if the insured should die by his own hand, it has been ruled that self-destruction did not avoid the policy when the insured who took his own life was at the time insane. In other words, to avoid the policy, the act of self-destruction must have been voluntary. St. Louis Mutual Life Ins. Co v. Graves, 6 Bush, 268; Manhattan Life Ins. Co. v. Beard, 112 Ky. 455, 66 S.W. 35. A different rule has obtained where the policy contained a stipulation that if the insured should take his own life while insane, or if his act be voluntary or involuntary while sane or insane. The cases construing these last-mentioned provisions may be found in Manhattan Life Ins. Co. v. Beard, supra, and it is not necessary to further mention them here.

If Bindell, while insane, destroyed the insured property, the company cannot under the conditions of this policy escape liability for the loss upon this ground. Unless Bindell's act in destroying the property was fraudulent, voluntary, or intentional, the company is bound. It is well settled that although the negligence or carelessness of the insured may cause or result in the destruction of his property, the company will be liable, unless the carelessness or negligence is of such a character as to amount to fraud or willful misconduct on his part. Ostrander on Insurance, p. 192; 1 Wood on Insurance, p. 274. In 19 Cyc. p. 831, the rule is thus stated: "In the absence of fraud or design on the part of the insured, or some stipulation in the policy, the insured is not relieved from liability by mere negligence or carelessness of the insured or his servants, although directly contributing to or causing the...