Clark v. Life & Casualty Ins. Co.

• Decision Date: 28 October 1932
• Citation: Clark v. Life & Casualty Ins. Co., 245 Ky. 579, 53 S.W.2d 968 (Ky. 1932)
• Court: Supreme Court of Kentucky
• Parties: Clark v. Life & Casualty Ins. Co.

245 Ky. 579

Clark v. Life & Casualty Ins. Co.

Court of Appeals of Kentucky.

Decided October 28, 1932.

1. Damages. — Generally, measure of recovery for failure to pay money is amount agreed to be paid with legal, or agreed non-usurious, rate of interest.

2. Damages. — Generally, damages for mental anguish are not recoverable for violation of contract unaccompanied by physical injury.

3. Pleading. — In action to recover amount of industrial policy, where amended petition claimed $5,000 damages for humiliation for insurer's refusal to pay amount of policy, court properly required election, and on plaintiff's refusal to do so, properly made election itself.

4. Appeal and Error. — In action on industrial policy, amended petition claiming $5,000 for humiliation from insurer's refusal to pay amount of policy held sham plea, which, although not stricken by trial court, could be disregarded by appellate court in determining whether amount in controversy gave it jurisdiction (Civil Code of Practice, sec. 113, subsec. 8; Ky. Stats., sec. 950-3).

Appeal from Franklin Circuit Court.

DULIN MOSS for appellant.

MARION RIDER for appellee.

OPINION OF THE COURT BY JUDGE THOMAS. Dismissing appeal.

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...