Gaines v. Aetna Insurance Company

• Decision Date: 18 November 1898
• Parties: Gaines v. Aetna Insurance Company.
• Court: Kentucky Court of Appeals

104 Ky. 695

Gaines v. Aetna Insurance Company.

Court of Appeals of Kentucky.

November 18, 1898.

APPEAL FROM HENRY CIRCUIT COURT.

J. HARDING FOR APPELLANT.

W. S. PRYOR, ALSO FOR APPELLANT.

W. B. MOODY AND H. K. BOURNE, ALSO FOR APPELLANT.

J. BARBOUR AND J. D. CARROLL FOR APPELLEE.

JUDGE WHITE DELIVERED THE OPINION OF THE COURT.

The appellant, W. T. Gains, brought this action in the Henry Circuit Court against appellee, Aetna Insurance Company, for damages for libel. A demurrer entered to the petition was sustained, and the petition dismissed, and plaintiff appeals.

The petition, after charging that appellee is a corporation, and authorized to sue and be sued, alleges that in 1895 the plaintiff (appellant) instituted suit on a certain policy of insurance for the loss of tobacco, and that in that action the defendant (appellee) filed an answer on the 11th day of May, 1895, "in which it made the following false and malicious allegation of and concerning this plaintiff, to-wit: `Defendant, for further answer, avers that the barn and its contents, including the tobacco insured, were destroyed either by the gross and reckless carelessness and negligence of the plaintiff, or were intentionally destroyed by him for the fraudulent purpose of rendering this defendant, and the other companies which had insured the barn and corn therein, and also the tobacco, liable for the amount of the insurance, which greatly exceeded the actual value of the property insured,' meaning by said language to charge the plaintiff, and thereby charging him, with the felonious offense of burning said barn and its contents, including the tobacco insured by the defendant, for the purpose of collecting from defendant and the other companies which had insured it the amount of insurance thereon. Plaintiff says that said allegations were false and absolutely groundless; that the defendant, by its aforesaid agents and attorneys, at the time of and before the composing, uttering, or publication thereof, knew they were false and without the color of truth or probability, and that they could not be sustained by proof. But in order to defame, injure, and ruin plaintiff, the defendant, by its said agents and attorneys, falsely and maliciously composed, uttered, and published said words of and concerning plaintiff, and maliciously used said legal proceedings, in bad faith, as a cloak to said libelous utterances, and that plaintiff was damaged thereby in the sum of ten thousand dollars." It will be noticed that the petition is not defective in any way as to form, and, if the demurrer was properly sustained, it was because of substance. The allegations of the petition being taken as...