Federal Sur. Co. v. Guerrant
| Decision Date | 27 March 1931 |
| Citation | 38 S.W.2d 425,238 Ky. 562 |
| Parties | FEDERAL SURETY CO. v. GUERRANT. |
| Court | Kentucky Court of Appeals |
Rehearing Denied May 29, 1931.
Appeal from Circuit Court, Clark County.
Suit by E. P. Guerrant against the Federal Surety Company. Judgment for plaintiff, and defendant appeals.
Reversed and a new trial awarded.
Benton & Davis, of Winchester, for appellant.
Jouett & Metcalf, D. L. Pendleton, and V. W. Bush, all of Winchester, for appellee.
The Federal Surety Company seeks the reversal of a judgment for $2,903.23 recovered against it by Dr. E. P. Guerrant.
On December 26, 1925, the Federal Surety Company issued to Dr Guerrant a policy of liability insurance, covering the operation of a Hudson Super Six coach for the period of one year.
On August 19, 1926, this machine, while driven in Laurel county by Dr. Guerrant's 20 year old son, collided with a car driven by one Lyman Carter, and the latter was killed. In July, 1927, Dr. Guerrant was sued for $50,500 by the administratrix of Carter. The Federal Surety Company was notified of the suit, but denied liability and declined to have anything to do with it. Dr. Guerrant defended the suit, was successful, and after it was over, filed this suit on the policy, alleging elaborately the foregoing, and further:
That on the day following the accident he gave notice thereof to John H. Lacy, the defendant's authorized agent, and gave defendant through Lacy the fullest information then obtainable.
That under and by the terms and conditions of said policy and contract the defendant company agreed with the plaintiff to indemnify him. "On account of *** injury or death to *** persons injured or killed, and to the extent of $1000.00 for property damage caused from accident or accidents by assured's automobile, a Hudson Super Six Coach, Factory Number 422996, Model 1923, while being driven by the assured or a member of his family who was at least sixteen years of age and of lawful age to drive an automobile under the laws of Kentucky, for which damage to persons or property the assured should be legally liable and agreed further to pay all costs and expense incident to the investigation and settlement of claims and all costs taxed against assured in any legal proceeding *** and that defendant company further agreed that, if any suit, even if groundless should be brought against the assured to enforce a claim for damages on account of any accident covered by said policy, the Company would at its own cost defend or at its option settle said suit in the name and on behalf of the assured. *** That he did make such investigations as were necessary and did prepare through his attorneys said suit for trial, and that said suit was tried before a jury in the Laurel Circuit Court at London, Kentucky, in October, 1927, and resulted in a judgment for the defendant and his said son. Plaintiff says that he had incurred as costs and expenses incident to the investigation and the trial for said suit the following sums:
For these sums Dr. Guerrant prayed judgment. The surety company's demurrer to this petition was overruled, and it answered, denied the petition, alleged that any sum in excess of $1,000 for attorneys' fees and $100 for expenses was unreasonable, and further alleged:
"It says that on said occasion the plaintiff, at plaintiff's office in Winchester, Clark County, Kentucky, orally stated to said Lacy that he had met with an accident with his car while driven by his son, the Edward Guerrant mentioned in the petition, in Laurel County, Kentucky, in which a man had been killed; that the coroner's jury and persons who were cognizant of the facts had exonerated the plaintiff's son; that upon receiving this information which it says was all the information the plaintiff gave its agent, Lacy, with reference to said accident, and did not include the name of any witness to the accident, nor give any information other than the bare fact that in the accident a man was killed, and that his son had been exonerated by the coroner's jury and persons who were cognizant of the facts, the said Lacy instructed the plaintiff to come to his office and make out a written report of the accident; that the plaintiff said he would do so, but defendant says that the plaintiff wholly failed to go to said Lacy's office and make out a written report of the accident, and this defendant says that it had no notice of said accident until sometime in the month of July, 1927, and the defendant says that by reason of the plaintiff's failure as soon as practicable after he ascertained the occurrence of the accident to give written notice thereof to this defendant's home office at Davenport, Iowa, or to this defendant's authorized agent the plaintiff is estopped from asserting any claim of any character against this defendant on account of said accident." (No part of this answer was italicized, but there are our italics used for purposes of illustration.)
Dr. Guerrant moved to strike almost the whole of this answer, but his motion was overruled except as to that part which we have italicized. As to that part it was sustained and that was stricken. The surety company's plea of estoppel was not good. To constitute a sufficient plea of estoppel, the asserter of the estoppel must in his pleading affirmatively show that his adversary in previous dealings with the asserter had induced the asserter to believe certain things to be true, that the asserter has acted on that belief, and that his adversary is now seeking to take a position inconsistent with such former position, by asserting as true, matter he formerly denied, by denying matter he formerly asserted to be true, or otherwise be now making contentions or claims or taking positions inconsistent with claims made or denied or positions taken in his former dealings with the asserter of the estoppel. That the asserter of the estoppel was deceived thereby is an essential element of an estoppel, though it need not appear that the party sought to be estopped intended to deceive. That the estoppel asserter was deceived by some act or conduct of the party against whom the estoppel is asserted must appear. No such suggestion is in this answer; therefore this plea of estoppel was not good. The correct way to have reached this plea would have been to have had this answer paragraphed and then to have demurred to this paragraph. A motion to strike is directed to surplusage or irrelevant matter in a pleading, or to an entire pleading if all of it be of that nature. The question of the sufficiency of the pleading to state a cause of action or a defense cannot be raised by a motion to strike. Burton v. Ott, 226 Ky. 647, 11 S.W.2d 700; Mann v. Woodward, 217 Ky. 491, 290 S.W. 333; Louisville, etc., Ry. Co. v. Horton, 187 Ky. 617, 219 S.W. 1084.
First Nat'l Bank v. Mannoth Blue Gem Coal Co., 194 Ky. 580, 240 S.W. 78, and Combs v. Frick Co., 162 Ky. 42, 171 S.W. 999, appear to be to the contrary. However, as this judgment is being reversed for other reasons, this is of no great importance.
Dr. Guerrant in his reply, besides denying categorically the answer, made the following affirmative allegations, a portion of which we have italicized for our convenience:
Demurrer to this reply was properly overruled. The doctor specifically pleads what the defendant's agent did and that he relied upon it. This plea of estoppel against the defendant is good. Defendant moved to strike almost the whole of this reply, but its motion was properly overruled. Rejoinder completed the issues of fact which were: Were the sums paid by Dr. Guerrant for attorney's fees, etc., reasonable, and did Lacy accept or by...
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