Insurance Company v. Southard
| Decision Date | 15 July 1848 |
| Citation | 47 Ky. 634 |
| Court | Kentucky Court of Appeals |
| Parties | Kentucky and Louisville Mutual Insurance Company <I>vs</I> Southard. |
THIS action of covenant was brought by Southard to recover for the destruction by fire, of his dwelling house, insured by the Kentucky and Louisville Mutual Insurance Company. The policy on which the action is founded, insures the plaintiff to the amount of $7,000, against loss by fire from the 6th day of March, 1841, to the 6th day of March, 1847, upon his And it is provided that In the condition, or terms annexed to the policy, it is stated, that insurance is in no case made on more than two thirds of the value of any building, and that in case of total loss, the company is not liable to pay more than two thirds of the actual value of the building at the time of loss.
The declaration, after setting out the policy at large, avers that the said mansion house was at the date of the policy, and at the time of its destruction by fire, of great value, viz: of the value of $12,000; that the said house and the land on which it was situated, were at the date of the policy, and always thereafter, the property of the plaintiff, subject to the mortgage to Burks, and to two mortgages subsequently made; that at the date of the policy, and afterwards until it was destroyed by fire, the said house was, and continued to be occupied as a dwelling house, and that it was not at the time of the fire, occupied for any purpose more hazardous than existed at the date of the policy; that the plaintiff did, in good faith, make a fair and full representation to said company, of all facts and circumstances within his knowledge touching or affecting the risk of said property, and did fully and fairly disclose to them the true state of the title of said property and the incumbrances thereon according to his best information and knowledge; and did in all respects comply with the duties incumbent on him by law. The plaintiff then avers, that on the morning of the 1st of March, 1847, the said mansion house was burnt and wholly destroyed by fire, which fire was by misfortune, and was not caused by any design nor act of the plaintiff, nor occasioned by any public enemy, &c., but was occasioned by some accident or casualty in a manner unknown to him, and that he lost thereby a large sum, viz: $12,000; that notice was on the same day given to the company, with demand of payment, whereupon said company, by a resolution of the board of directors, determined to refuse payment, and had failed and refused, &c.
The defendants demurred to the declaration, and at the same time filed pleas 1, 2, 3 and 4, to which the plaintiff demurred. And the declaration having been adjudged good, and the pleas bad, time was given to the defendant to plead de novo. At a subsequent term the defendant filed pleas 5, 6 and 7; to the first of which the plaintiff replied by way of traverse, on which issue was joined; and to the two others he filed demurrers, which were sustained. The defendant then offered plea number 8, said to be in lieu of his demurrer to the declaration, which had been overruled. But the Court would not allow it to be filed, and the defendant having excepted to the refusal, a trial was had upon the issue made upon the 5th plea, and a verdict and judgment were rendered for the plaintiff for $6,804 43. The defendants' motion for a new trial was afterwards overruled, and they have brought the case to this Court for revision, questioning by the assignment of errors, the correctness of the several opinions of the Court in overruling the demurrer to the declaration, and in sustaining the demurrers to pleas 1, 2, 3, 4, 6, 7, and in refusing to allow plea number 8 to be filed, as well as of the opinions given during the progress of the trial, and on the motion for a new trial.
We are inclined to the opinion, that the defendants must be understood to have waived their demurrer to the declaration, and to have withdrawn their four first pleas, by taking time to plead de novo, and by offering new pleadings under the privilege thus allowed. But as the questions on all of the demurrers were elaborately argued here, we shall notice them all.
The declaration seems to contain every averment, both affirmative and negative, which is necessary either under the policy or the charter of the company, to show that the defendants were bound to pay the loss which had occurred. And the objection that the suit was brought within the thirty days allowed to the company by the charter having been expressly waived in the Circuit Court, we are satisfied that upon the face of the declaration the plaintiff shows a good cause of action. The matter of the 4th plea, so far as it is a valid defence, being contained in the fifth, on which the cause was tried, the defendant was not prejudiced by the decision on the demurrer to the 4th plea, even if it was erroneous.
2. Then as to the three first pleas, they stand upon the assumption that the application of Southard for insurance, and the survey of the building being referred to in the policy as forming a part of it, are to be taken as if they were actually inserted in it, and that every descriptive statement of the property contained in either of them, is by the law of insurance a warranty, the breach or untruth of which in any particular, whether material to the risk or not, avoids the policy.
But in the first place it is questionable whether even in the law of marine insurance, the principle which converts into a warranty every matter of fact or description relative to the property insured, which the parties have inserted in the policy, is to be applied to any such matter not inserted in the policy nor written upon it, though it be referred to therein as a part of the policy. For the question might still arise, for what purpose is it made a part of the policy, and why was it not inserted in it? In ordinary contracts such matter, though actually inserted in the written memorial, has not necessarily, the force of a covenant or warranty. In marine insurances, it acquires the force of a warranty from the very fact of being inserted in the policy. And as the insurer may insert so much of the applicant's description or statement as he intends to have the force of a warranty, there is room for the inference that so much as is not inserted is intended to have the effect of a representation merely, and is referred to as such. The general rule is well settled that an express warranty must appear on the face of the policy, and that instructions for insurance, unless inserted in the policy itself, do not amount to a warranty. So a memorandum upon a paper attached to the policy by a wafer, or rolled up in it, when it was shown to the under writer and executed by him, has been held not to be a warranty but a representation merely. These positions are fully sustained by the cases stated in the notes, pages 11 and 12 of Douglass' Reports. Chancellor Walworth in Snyder vs Farmer's Loan Company, (16 Wend. 481,) admitting that the parties might, by stipulation, inserted in the policy, give the effect of a warranty to a statement of facts contained in a separate paper, maintains the opinion that, (in the absence of such stipulation,) the principle which converts every thing in the policy into a warranty, is not to be extended to any thing not contained in the policy or written on the same paper. And in Delonguemen vs The Tradesman's Insurance Company, (2 Hall, 589,) Chief Justice Jones and Judge Oacklay, upon the authority of the cases just referred to and others, express the same opinion: (1 Cond. Marsh. 349, 451; 3 Kent's Com. 235; 13 Mass. Rep. 96; 3 Dowl. 255.)
But in the second place. Whatever might be the doctrine in case of marine policies, in making which the insurer is in general, wholly dependent upon the statements of the insured, with regard to the property and the risk, it has been seriously doubted (by Chancellor Walworth ubi supra,) and so far as we know, has not been established by judicial decisions, whether "the principle of construing every matter of mere description contained in the body of the policy into a warranty, should be applied with the same strictness to fire policies, where the misdescription is most generally the the mistake of the under writer's own surveyor." And in the third place. These warranties being conditions precedent, which must be performed or be true, however immaterial, there is an obvious propriety that they should be contained in the policy which is to be kept by the insured, not only that he may be enabled to make the proper averments when he comes to declare, but that he may be fully apprised of the effect intended to be given to his statements. Since if they are considered merely as representations, it is sufficient that they were made without fraud and are substantially true in every point material to the risk.
Under these considerations we are of opinion that it is at least safe to conclude that the reference in this policy to the application and survey as a part thereof, being a part of the clause which vacates the policy if the premises should, at the time of any fire, be...
To continue reading
Request your trial