Phenix Ins. Co. v. Coomes

• Decision Date: 12 January 1893
• Citation: 20 S.W. 900
• Parties: Phenix Ins. Co. of Brooklyn v. Coomes.
• Court: Kentucky Court of Appeals

20 S.W. 900

Phenix Ins. Co. of Brooklyn v. Coomes.

Court of Appeals of Kentucky.

January 12, 1893

Appeal from circuit court, Daviess county.

"Not to be officially reported."

Action by S. P. Coomes against the Phenix Insurance Company of Brooklyn, N.Y. Judgment for plaintiff. Defendant appeals. Affirmed.

Pryor J.

This is an action against the Phenix Insurance Company, by the appellee, to recover the value of property insured, by reason of its destruction by fire. The company filed its answer alleging by way of defense affirmative matter, upon which an issue was joined; and, the law and facts having been submitted to the court, a judgment was rendered for the plaintiff.

The policy provides that in case of loss the insured shall forthwith give notice in writing to the company. The notice was not forthwith given, or any excuse made for not giving it, when the fire took place, on the 13th of November, and proof of loss was not presented until the 10th of January following. There was no demurrer to the petition, and no such issue raised by the answer, but an issue formed that tested alone the merits of the defense, and therefore the question as to notice was waived; and, if not, in the case of Insurance Co. v. Downs, (Ky.) 13 S.W. 882, it was held that the proof of loss was a condition precedent to the creation of the liability, and, if the failure to give the notice had been placed in issue, the presentation of the proofs of loss within a reasonable time would have been sufficient.

The company relies on a change made of the buildings by the owner after the insurance that increased the risk, and claims exemption from liability on that account, when the proof shows that the manner of the change of the building was made known to the agent of the company and he approved it, and this was to tear down or remove the ell, and erect a new one in its stead, covering the new ell with tin instead of shingles. The agent made an indorsement on the policy that the insured could make repairs, evidently for the purpose of assuring the owner that the repairs might be made as suggested by him.

The buildings stood upon a tract of 140 acres of land owned by the appellee, with a lien for the purchase money amounting to $600. The question being asked by the agent,-if there was any mortgage on the property,-the owner responded "No;" and it is claimed that the failure to state that a lien existed for the $600 made...