Lancaster Ins. Co. v. Monroe

• Decision Date: 03 March 1897
• Citation: 101 Ky. 12,39 S.W. 434
• Parties: LANCASTER INS. CO. v. MONROE et al.
• Court: Kentucky Court of Appeals

39 S.W. 434

101 Ky. 12

LANCASTER INS. CO. v. MONROE et al.

Court of Appeals of Kentucky.

March 3, 1897

Appeal from circuit court, Harrison county.

"To be officially reported."

Action by Monroe, Jefferson & Co. against the Lancaster Insurance Company to recover on a fire insurance policy. There was judgment for plaintiffs on demurrer sustained to the answer and defendant appeals. Reversed.

Blanton & Berry, for appellant.

Ward &amp Lafferty, for appellees.

HAZELRIGG J.

This was a suit by appellees on a fire insurance policy issued in January, 1893, to Berry & Jefferson, liverymen in Cynthiana Ky. and by them assigned in June, 1893, with the consent of the insurance company, to the appellees, successors to Berry & Jefferson in the business named. The fire occurred in September, 1893, and this action was brought in the following January. The policy was for the term of one year, and provided against loss or damage by fire to an amount not exceeding $1,000, of which the sum of $800 was on their horses, and $200 on their buggies, wagons, and other vehicles, harness, blankets, implements, hay, grain, etc. The petition avers "that on the 14th day of September, 1893, the property mentioned and described in the policy was destroyed by fire, whereby the plaintiffs sustained loss in a sum much greater than the amount stated in the policy." As the policy undertook to pay only "the actual cash value of the property at the time any loss or damage occurred," good pleading required the plaintiffs to allege the actual cash value of the property destroyed; but a motion to make the averments of the petition in this behalf more specific would have been more appropriate means to cure the defect in the pleading than the general demurrer which was filed by the company. This motion was not made, but, after the demurrer was overruled, an answer was filed, in which the company denied "that the plaintiffs had sustained loss or damage in the sum of $1,000 or any other sum." This put in issue the actual loss or damage, and called for proof of the value of the property destroyed. It is insisted, however, that the demurrer ought to have been sustained, because there is no averment of notice and proof of loss being furnished to company after the loss. And, again, we must say that good pleading required such averment or a statement of facts showing a waiver by the company of the notice and proof required by the terms of the policy. The company, however, did not stand on its demurrer, and, looking to the answer, we find that its real defense to the action, besides the issue as to value, is that the existence of certain mortgages on the property was concealed from the company and its agents, by reason of which the policy is claimed to be void from the beginning. The question of notice and proof of loss, therefore, becomes unimportant, as the giving of the notice and the production of the proof must have been unavailing to the policy holder, in the face of the contention that the policy was void in any event. We shall treat the petition, therefore, when aided by the answer, as sufficiently specific, and as stating a good cause of action.

A demurrer to the answer was next sustained, and judgment rendered against the company for the full amount named in the policy. We have already seen that an issue with respect to the value of the property was formed by the averments of the pleadings; somewhat indefinitely formed, it is true, but, as this resulted from lack of specific averments in the petition, the plaintiffs cannot complain if the answer in this particular is not as definite as it might be. It devolves on the plaintiffs to prove up their losses, not simply in the aggregate, but as provided for under the terms of the insurance. As an issue was thus formed, it was error to sustain the demurrer. This issue of fact, however, was not the only issue presented by the answer; and it is proper to consider all the questions presented and determined by the trial court, to the end that any future trial may conform to the views we entertain on the questions presented.

It is alleged in the answer, first, that at the time of the issuance of the policy to Berry & Jefferson, the assignors of the plaintiffs, they represented to the company that they were the sole owners of the insured property, and that it was unincumbered, and concealed from the company the fact that the property was incumbered to the extent of $3,750 to one G W. Gooding, as shown by a chattel mortgage or bill of sale of date October ___, 1892, and which incumbrance or mortgage, it is averred, is of record in the Harrison county court clerk's office, and has never been released. It is alleged, in the second place, that at the time of the sale and transfer of the property by Berry & Jefferson to appellees, in June, 1893, when the policy was likewise transferred, Berry & Jefferson retained a purchase money lien for the sum of $2,100, and, to secure it, had their vendees to execute to them a chattel mortgage on the property for the sum named; and this was without the knowledge or consent of the company, and was concealed from it by the plaintiffs. It is alleged, therefore, that neither Berry & Jefferson nor Monroe, Jefferson & Co. were the unconditional and sole owners, respectively, of the property, either in January or in June, 1893. The...