Home Insurance Co. of N.Y. v. Johnson

• Decision Date: 30 November 1928
• Citation: 226 Ky. 594
• Parties: Home Insurance Company of New York v. Johnson.
• Court: United States State Supreme Court — District of Kentucky

Page 594

226 Ky. 594

Home Insurance Company of New York v. Johnson.

Court of Appeals of Kentucky.

Decided November 30, 1928.

1. Insurance. — In case failure to furnish proof of loss does not work a forfeiture of insurer's liability, the furnishing of proof of loss is a condition precedent to right of action on policy, and insured has burden of proof thereof.

2. Insurance. — Where policy provided that failure of insured to furnish proof of loss within specified period should work a forfeiture, any failure of insured to furnish proof of loss within time avoided policy.

3. Insurance. — Where failure to furnish proof of loss worked a forfeiture of insurance policy, such failure is an affirmative defense, and burden was on defendant to establish it.

4. Trial. — Under Civil Code of Practice, sec. 526, relating to burden of proof, the denial of motion by insurer that it be awarded the burden of proof, with the incident right to open and close, constituted error, where it set up affirmative defenses to effect that loss was forfeited for failure to furnish proof of loss within required time, and that property was burned at instance and request of insured.

5. Trial. — Pleader, by anticipating possible defense, cannot deprive other party of burden of proof, with its incident right to open and close.

Appeal from Warren Circuit Court.

GORDON & LAURENT and THOMAS & LOGAN for appellant.

G.D. MILLIKEN and MOORE & MOORE for appellee.

OPINION OF THE COURT BY JUDGE REES.

Reversing.

The appellant issued a policy of fire insurance to the appellee, W.R. Johnson, on the latter's dwelling house, stock barn, and certain personal property. The property was burned on August 5, 1926. Thereafter, appellee brought this suit on the policy and recovered a judgment for $1,900.

The appellant did not deny any of the allegations of the petition, but in its answer set up two affirmative defenses: (1) The claim for the loss was forfeited because of the failure of the assured to furnish proofs of loss within 60 days from the fire; (2) that the insured property was set on fire and burned by persons acting for the insured, with his knoweldge, consent, and procurement. These facts in avoidance, pleaded in the answer, were denied by the reply. The appellant relies upon the following grounds for a reversal of the judgment: (1) Failure of the trial court to award it the burden of proof; (2) misconduct of counsel for the plaintiff in the argument of the case before the jury; (3) errors in the instructions.

The insurance contract here involved is a farm fire insurance contract as defined in Staples v. Continental Insurance Co. of New York, 223 Ky. 842, 5 S.W. (2d) 265. The policy contains a provision that the insured shall within 60 days from the date of the loss, unless such time is extended in writing by the company, furnish written proofs of loss and all claims for any loss or damage shall be forfeited by failure to furnish such proofs of loss within the time provided. It was alleged in the petition that plaintiff furnished defendant with a statement of the amount of his loss and the cause thereof as nearly as it was possible for him to do, and that, after making an investigation for itself, the defendant refused to pay the plaintiff any sum and denied its liability under the policy. This insurance policy differs from those policies which are so worded that failure to furnish proof of loss does not work a forfeiture of the insurer's liability. In the latter class of cases, furnishing of proof of loss is a condition precedent to the right to institute an action on the policy, and the insured must plead that he has furnished proof of loss in conformity with the provisions of the policy, and the burden of proof is upon the plaintiff to show that the proof of loss has been furnished. Fidelity Phoenix Co. v. Vincent, 224 Ky. 769, 7 S.W.(2d) 203, and cases therein cited. The proof of loss clause in the policy in the instant case, however, provides that failure of the insured to furnish proof of loss within the time provided shall work a forfeiture, and failure of the insured to furnish proof of loss within the time provided, if there was such failure, avoided the policy. Standiford v. American Insurance Co., 208 Ky. 731, 271 S.W. 1042. The performance of this stipulation of the policy was a condition subsequent. The original validity of...