Kenton Ins. Co. v. Wigginton

• Decision Date: 05 December 1889
• Citation: 89 Ky. 330,12 S.W. 668
• Parties: KENTON INS. CO. v. WIGGINTON.
• Court: Kentucky Court of Appeals

12 S.W. 668

89 Ky. 330

KENTON INS. CO. v. WIGGINTON.

Court of Appeals of Kentucky.

December 5, 1889

Appeal from circuit court, Carroll county.

"To be officially reported."

Action by C. S. Wigginton against the Kenton Insurance Company on a policy of insurance. From a judgment of the circuit court for plaintiff, defendant appealed to the superior court, where the judgment was affirmed, and he again appeals.

Collins & Fenley, for appellant.

Geo. C Drane and J. A. Donaldson, for appellee.

PRYOR J.

The appellant, the Kenton Insurance Company, made a contract of insurance with the appellee, Wigginton, by which the company insured his dwelling-house against loss or damage by fire for the period of three years from the 2d day of November, 1886. The policy of insurance contains the usual stipulations with regard to notice and the preliminary proof as to the loss, as well as the representations by the insured that he was the owner in fee of the property. The dwelling insured having been destroyed by fire, the appellant refused to pay the loss, for the following reasons: First. It contends that no preliminary proof of the loss was made and presented to the company as the contract of insurance required; and that being a condition precedent on the part of the insured the recovery should have been denied. Second. The insured owned only an interest of one-fourth in the property when he represented that he was the sole owner in fee. Third. The title to the property was in litigation in the Carroll circuit court when the insurance was effected by the appellee; and, the contract of insurance making the policy void if that fact is not disclosed, no recovery should be had.

The policy provides that no action shall be maintained until the proofs of loss are furnished as required by the contract, and the application must disclose the true character of the title; and, if incumbered or involved in litigation, such facts must be disclosed by the insured. An examination of this record has satisfied us that no valid defense has been made out, and the absence of the preliminary proofs essential to the demand of payment from the company was caused by the conduct of the company or its agents, and for which the appellee is in no wise responsible. As soon as the fire occurred, and the appellee's property was destroyed, he notified the local agent of the company, and asked him for the usual blank forms kept and furnished by such companies to the insured as a guide in proving the loss sustained, and, in response, was told that the agent had no blank forms, but would write or see the principal agent or the home office on the subject. The principal office having been notified of the destruction of the property, and the appellee becoming restless at the delay in delivering to him the formula for making his preliminary proof, the local agent went to Covington, the place of the principal office, and was there told, in effect, that some one would be sent down to see about the matter, or to settle it, all of which was communicated to Wigginton, who relied on the statements of the local agent, that are not denied by the company, but admitted to be true. The home office knew that the written forms had been applied for by Wigginton, the appellee, at the office of the agent at Carrollton; had been written to by this agent to send the forms, and, instead of doing so, or delivering them to the local agent, who had gone to the home office to inquire about the delay, said to the agent "We will send some one down to see about it," and this "some one" did come, but never saw the appellee, or approached him on the subject, nor did he give the latter the opportunity of seeing him, but left the town of Carrollton as if the matter was of no importance to the appellee or the company. The appellee began to comply with his contract the morning after the fire, and attempted to do everything that was necessary to notify the company of his loss, but delay after delay, resulting more from the action of the company than that of the appellee, prevented the proofs from being made within the 30 days; and that the appellee was lulled into security by the conduct of the company or its agents is too plain a...