Clark v. Life & Cas. Ins. Co.
| Decision Date | 28 October 1932 |
| Citation | 245 Ky. 579,53 S.W.2d 968 |
| Parties | CLARK v. LIFE & CASUALTY INS. CO. |
| Court | Kentucky Court of Appeals |
Appeal from Circuit Court, Franklin County.
Action by Isaac Clark against the Life & Casualty Insurance Company. Action was dismissed, and plaintiff appeals. On defendant's motion to dismiss the appeal.
Motion sustained, and appeal dismissed.
Dulin Moss, of Frankfort, for appellant.
Marion Rider, of Frankfort, for appellee.
The motion made by appellee to dismiss this appeal, because the amount involved is not sufficient to give this court jurisdiction thereof, will have to be sustained for the reasons hereinafter set out. The action is one by appellant and plaintiff below against the appellee and defendant below to recover $162, the amount of an industrial insurance policy issued on the life of Ora Clark, wife of plaintiff, on June 9, 1930. She died on July 21 thereafter. Plaintiff, as her husband, having the right to collect the proceeds of the policy, under a provision contained therein, filed this action against defendant in the Franklin circuit court to recover the amount thereof. He alleged in his petition that all the premiums (15 cents per week) had been paid, and that the policy was in full force and effect at the time of his wife's death. The policy provided that the premiums were payable at the home office of the company, but might be paid to any authorized representative of the company, provided such a payment, to be binding on the company, "must be entered at the time in the Premium Receipt Book provided by the Company for entry of premiums payable on this policy."
The petition did not aver that the entries of the payments of the premiums were made in any such book, nor was the book filed as an exhibit therewith, and defendant moved the court to require that it be filed, which motion was sustained. In response thereto, an amended petition was filed in which it was alleged that the company had never furnished to the insured any such book, and for that reason none could be filed. A demurrer was sustained to the petition as so amended, and plaintiff filed a second amendment, in which he reiterated former allegations in his pleadings, and averred that receipts were given by the collecting agent for the premiums, but none of them were filed, nor do we find any averred reason for not doing so. Another demurrer filed to the petition as so amended was sustained, when plaintiff filed a third one. In it he affirmed his former pleadings and then alleged that the policy was taken out to provide a burial fund for the insured, and which fact was known and understood by both parties to the contract; that in negotiating with the undertaker the local agent of defendant denied its liability under the policy, because the premiums had not been paid, but which plaintiff contradicted; that because thereof the undertaker would not extend credit for the expenses of the burial outfit, and plaintiff was compelled to beg and borrow from friends and acquaintances whatever amounts he could in order to produce the required fund to properly bury his wife, and that he was thereby caused great humiliation and suffering, both mentally and physically, and whereby he was damaged in the sum of $5,000 for which he prayed judgment in addition to the amount of the policy.
Defendant then moved the court to require plaintiff to elect which cause of action he would prosecute, and that motion was sustained; but plaintiff declined to make an election, and the court then did so for him, and directed that the action proceed as originally brought; i. e., for collection of the $162, the amount of the policy. It then sustained the third demurrer filed to the petition as amended, and, plaintiff declining to plead further, the action was dismissed followed by his prosecuting this appeal under an order of the circuit court granting it.
There are many classes of cases where consequential damages may be recovered for the violation of a contract, when such recovery may be considered as fairly within the contemplation of the parties as proximately flowing from the breach. But we have been unable to find any case, nor have we been furnished one by counsel for plaintiff, where such damages may be recovered upon the breach of a promise solely to lend...
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