Northwestern Nat. Ins. Co. of Milwaukee v. Avant

• Decision Date: 17 February 1909
• Citation: 116 S.W. 274,132 Ky. 106
• Parties: NORTHWESTERN NAT. INS. CO. OF MILWAUKEE v. AVANT.
• Court: Kentucky Court of Appeals

116 S.W. 274

132 Ky. 106

NORTHWESTERN NAT. INS. CO. OF MILWAUKEE v. AVANT.

Court of Appeals of Kentucky.

February 17, 1909

Appeal from Circuit Court, Graves County.

"To be officially reported."

Action by Laura Avant against the Northwestern National Insurance Company of Milwaukee. From a judgment for plaintiff defendant appeals. Reversed and remanded.

Foy &amp Fulcher and Robbins & Thomas, for appellant.

W. J Webb, for appellee.

O'REAR J.

Appellee was insured against loss of her property by fire in a policy issued by appellant company in the sum of $500. The policy contained this provision: "This entire policy unless otherwise provided by agreement, and endorsed thereon, or added thereto, shall be void if the insured now has or shall hereafter make and procure any other contract of insurance, whether valid or not, on property covered in whole or in part by this policy." Subsequently appellee obtained another policy of insurance upon the same property for $100 to be written by another company. The house containing the insured furniture was burned, together with its contents. This suit is upon the first policy. The company set up the clause quoted above and the obtention of the second policy without its assent as a defense. In avoidance of that defense, appellee claims that a few days after she obtained the policy in suit she notified appellant that she would probably want other insurance on the property, and appellant's agent with whom the contract was made assured her that it would be all right, and solicited her to take out the insurance with him.

Provisions of the character of the one quoted are familiar and wise regulations of the business of fire insurance. It is to prevent overinsurance, which might tempt the insured either to burn the property or to be less vigilant in protecting it against fire than he would be if the property was not insured to excess. Those provisions are upheld as a valid subject of the contract, and one which it is the policy of the law to encourage. If the parties to the contract agree that other insurance may be written upon the property, then the provision against other insurance is eliminated from it. The law does not require such agreement to be in writing. Although the policy of insurance stipulates that, unless the agreement for other insurance is in writing, it shall not be binding upon the company, that provision is not binding, as it is not competent for a man to bind himself that he will not be bound by a valid--that is, lawful--contract. The policy of the law is that certain contracts must be in writing to be valid, while all others may be in parol. The parties cannot agree so as to bind themselves either that contracts which the law requires to be in writing shall be valid though in parol, and in spite of the law, nor that contracts which the law allows to be in parol shall not be valid unless in writing. Parties cannot by contract alter the law. Hence if the...