Germania Ins. Co. v. Wingfield

• Citation: 57 S.W. 456
• Parties: GERMANIA INS. CO. v. WINGFIELD. [1]
• Decision Date: 15 June 1900
• Court: Court of Appeals of Kentucky

57 S.W. 456

GERMANIA INS. CO. v. WINGFIELD. ^[1]

Court of Appeals of Kentucky.

June 15, 1900

Appeal from circuit court, Warren county.

"Not to be officially reported."

Action by W. N. Wingfield against the Germania Insurance Company on a policy of fire insurance. Judgment for plaintiff, and defendant appeals. Affirmed.

John M Wilkins, Wilkins & Bradburn, and Wm. Cromwell, for appellant.

John B Rodes, for appellee.

BURNAM J.

Appellant asks the reversal of a judgment for $700 recovered by appellee against it on a fire policy for the destruction of his distillery building and machinery contained therein. It sought in its answer to avoid liability on the policy sued on on numerous grounds: First, that appellee in his application for the policy fraudulently overvalued the building and machinery insured; second, that in answer to the question asked in the application, "Has any of your property ever been burned?" he falsely answered, "No;" third, that he falsely answered "No" to the question as to whether there had been any threats of incendiarism made against him; fourth, that he falsely answered that no other company had declined the risk; fifth that one of the provisions of the policy was that if the property was a manufacturing establishment, and it should cease to be operated for more than 10 consecutive days without the written consent of appellant, it should become null and void, and appellant alleged that, without previous written consent or knowledge on its part, appellee had ceased to operate his distillery more than 10 days previous to the fire; and, sixth, that by one of the provisions of the policy it was agreed that, in the event of loss, defendant should not be liable for more than three-fourths of the actual cash value of the property insured at the time of such loss, and that the machinery in the building, covered by a separate clause of the policy, was not a part of the real estate, and in no event could here have been a recovery of more than three-fourths of the insurance thereon. Appellee, in his reply, denied the alleged overvaluation. Second, denied that he represented to the agent of appellant that none of his property had been burned, and averred, on the contrary, that he informed the agent, who with his own hand wrote all of the answers to the questions in the application, that a warehouse in which whisky was stored had been burned, and pointed out to him the location of the warehouse; that the agent informed him that the question was only intended to apply to property which had been destroyed by fire, on which there was insurance at the time; that, as a matter of fact, neither the warehouse, nor the whisky contained therein, was covered by insurance at the time of its destruction; and that the answer was written by the agent with full knowledge of the facts. Denied that he had falsely represented that there had been no threats of incendiarism made against him, or that he feared incendiarism, or that his application for insurance had been previously declined by any other company. Said further that at the time the application for the policy of insurance was signed by him, his distillery was not in operation, and this fact was well known to appellant's agent who solicited the insurance; that it was only a small establishment, which it was not customary to operate during the warm months of the year, and that this fact was...