Globe Indemnity Company v. Daviess

• Decision Date: 26 April 1932
• Citation: 243 Ky. 356
• Parties: Globe Indemnity Company v. Daviess.
• Court: United States State Supreme Court — District of Kentucky

243 Ky. 356

Globe Indemnity Company v. Daviess.

Court of Appeals of Kentucky. Common Pleas Branch, First Division.

Decided March 22, 1932.

As Modified April 26, 1932.

1. Trial. — If evidence is not disputed or witness impeached, and there is only one legitimate inference, no jury question exists.

2. Trial. — Where there is any evidence, however slight, supporting material issue, case is for jury, although judge may believe that weight of evidence is insufficient to support issue.

3. Trial. — Motion for directed verdict admits truth of evidence and all reasonable inferences and deductions.

4. Trial. — Witness' credibility is for jury.

5. Evidence. — "Probative evidence" is testimony carrying quality of proof and having fitness to induce conviction of truth, consisting of fact and reason co-operating as co-ordinate factors.

6. Trial. — Positive testimony may be contradicted by circumstances, or witness may be so evasive, equivocal, confused, or uncertain as to make credibility jury question.

7. Trial. — Evidence inherently impossible and at variance with recognized physical laws, or contravening laws of nature, is insufficient for jury.

8. Evidence. — Neither jury nor judge need accept witness' literal statements as true if they contain improbabilities, or reasonable grounds exist for concluding they are false.

9. Insurance. — Where insured, suing on indemnity policy, was allegedly robbed by masked man in daylight at front door on prominent street in large city, testimony held to raise such doubt as to require submission to jury.

Insured testified, among other things, that she was held up at point of gun and told to hand over the jewelry she had on, consisting, according to her testimony, of diamond bracelet, sapphires, and diamonds, and another solitaire with small diamonds around it and oynx, all of which, except a diamond ring, valued at somewhat more than amount of policy, was later found by insured in plain envelope in mail box. It appeared also that policy had been issued under unusual circumstances.

10. Evidence. — Since evidence, not showing that letter was stamped and posted, was insufficient to raise presumption of delivery, evidence of contents held incompetent.

11. Insurance. — That policy designated as warranties statements that no robbery insurance carried by insured had been canceled, and no loss sustained within five years, did not make them warranties; statute providing otherwise (Ky. Stats., sec. 639).

Designation in policy of such statements as warranties did not make them so, for it was in conflict with Ky. Stats., sec. 639, which declares that they are to be regarded only as representations, and that they shall not prevent recovery under policy unless material or fraudulent.

12. Insurance. — False representations, if fraudulently made, defeat recovery under policy regardless of their materiality (Ky. Stats., sec. 639).

13. Insurance. — False representations, though innocently made, defeat recovery under policy, if material to risk (Ky. Stats., sec. 639).

14. Insurance. — "Representation," as distinguished from condition or covenant, precedes insurance contract, and is inducement for its making and incidental thereto (Ky. Stats., sec. 639).

A representation relates facts on which insurer determines whether it will accept risk, not continue it, and policy is not voided, if matter, though relevant to transaction, is not material to risk.

15. Insurance. — Insured is not bound by exact letter of statement constituting representation for it need not be literally true (Ky. Stats., sec. 639).

16. Insurance. — Representation is material when communicating any fact important to matter of risk that may be reasonably supposed to influence insurer's judgment in undertaking risk or calculating premium (Ky. Stats., sec. 639).

17. Insurance. — "Warranty," unlike representation, is part of insurance contract itself, on literal truth or fulfillment of which validity of entire contract depends (Ky. Stats., sec. 639).

The falsity or breach of a warranty releases insurer from liability, even though insured was innocent of its presence in policy, the same as would a mutual undertaking in any other kind of contract, and question of materiality of statements, in the case of a warranty, does not arise.

18. Insurance. — Statute controlling representations is inapplicable to executory stipulations or promissory warranties contained in insurance contract as conditions subsequent (Ky. Stats., sec. 639).

19. Insurance. — There can be no retroactive representations, as in application for insurance policy (Ky. Stats., sec. 639).

20. Insurance. — Insurance contract may contain stipulations which, though not signed by insured, constitute representations within statute, and have same effect as if stated in application (Ky. Stats., sec. 639).

21. Insurance. — Statements in robbery policy that insured had not sustained loss by robbery within five years, and that no similar policy had been canceled, held equivalent to representations within statute (Ky. Stats., sec. 639).

22. Insurance. — Testimony that insurer, if correctly informed regarding prior recovery by insured under similar policy, would have investigated, held properly excluded; testimony not showing what insurer would have done respecting issuance of policy (Ky. Stats., sec. 639).

Testimony in question, to the effect that, if insurer had been correctly informed regarding previous loss by insured and cancellation of similar policy by another company, it would have made investigation and would have been guided by facts disclosed in accepting or rejecting application, was properly excluded because, for one reason, it did not show what insurer would then have done under particular facts which might have been disclosed.

23. Insurance. — In determining effect of false representations, question is not what particular company would do, but whether acting reasonably according to usual custom of companies writing similar insurance, would have issued policy if truth were known (Ky. Stats., sec. 639).

Appeal from Jefferson Circuit Court

FURLONG & WOODBURY for appellant.

CHARLES W. MORRIS for appellee.

OPINION OF THE COURT BY STANLEY, COMMISSIONER.

Reversing.

The appeal is from a judgment on a directed verdict in favor of the appellee, Mrs. Inez Daviess, for $1,000 in her suit to recover that sum on a policy of insurance indemnifying her against robbery of jewelry and other chattels. The defendant denied that the plaintiff had been robbed, and also sought to avoid liability because of certain false representations, to be presently considered.

1. Mrs. Daviess testified that upon opening her front door in answer to the bell on August 8, 1929, a man with a handkerchief over his face "stuck a gun in my side and told me to hand him over the jewelry I had on, which I did." She immediately notified the police and the insurance company. One morning five months later all of her jewelry so taken from her, except a diamond ring, valued at $1,200, was found by herself in a plain envelope in her mail box. The articles returned were "a diamond bracelet, sapphires and diamonds, and another solitaire with small diamonds around it and onyx." She could give no description of the robber except that he was a medium sized man wearing a cap. The plaintiff lived on one of the principal thoroughfares of the city of Louisville, and, while the hour at which she claims to have been robbed at her front door is not definitely stated, it appears that it was in the afternoon.

There was no other evidence concerning the robbery, and the trial court regarded the plaintiff's evidence as conclusive, and hence that there was no question of fact to be submitted to the jury. The ruling would have been proper if the evidence was not disputed or the witness impeached and if but one legitimate inference could be drawn. Western Union Tel. Co. v. Smith, 164 Ky. 270, 175 S.W. 375; Wood-Hick v. Roll, 183 Ky. 128, 208 S.W. 768; Louisville & N.R. Co. v. Hunter, 185 Ky. 165, 214 S.W. 914. However, this court is among those which are said to uphold with jealousy the right of trial by jury by the adoption of the doctrine of the scintilla rule to the effect that, where there is any evidence, however slight, tending to support a material issue, the case must go to the jury as the exclusive judges of the weight of the evidence, although the judge may be of the opinion that the weight of the evidence is insufficient to support the issue. Accordingly, it has been often written that, although the testimony may be highly improbable, the court should submit the case to the jury. City of Louisville v. Dahl, 170 Ky. 281, 185 S.W. 1127; Louisville & N.R. Co. v. Quinn, 187 Ky. 607, 219 S.W. 789. It is another familiar rule that a motion for a directed verdict admits the truth of the evidence and all reasonable inferences and deductions which can be drawn from it as well. So the judge may not invade the province of the jury where the evidence is in anywise contradictory or disputed, or if there is room for reasonable men to differ as to the fair inferences springing from the recitation of facts, purported or real, or if logical deductions may be drawn from it. It is a trite expression that the credibility of a witness is for the jury to consider. Louisville & N.R. Co. v. Spears' Admr., 192 Ky. 64, 232 S.W. 60; Louisville & N.R. Co. v. Jolly's Admr., 232 Ky. 702, 23 S.W. (2d) 564, and cases cited therein.

Probative evidence is testimony carrying the quality of proof and having fitness to induce conviction of truth. It consists of fact and reason co-operating as co-ordinate factors. Jones on Evidence, sec. 9. Does reason co-operate with the verbal testimony in the case at bar? Does not the story itself carry in a degree some refutation and challenge the credibility of the witness? The unusual character of the evidence rather shocks one's sense of the probabilities and tests his credulity. The alleged...