South v. Philadelphia Fire & Marine Ins. Co.

• Decision Date: 18 January 1927
• Citation: 217 Ky. 612,290 S.W. 493
• Parties: SOUTH v. PHILADELPHIA FIRE & MARINE INS. CO.
• Court: Kentucky Court of Appeals

290 S.W. 493

217 Ky. 612

SOUTH v. PHILADELPHIA FIRE & MARINE INS. CO.

Court of Appeals of Kentucky.

January 18, 1927

Appeal from Circuit Court, Harlan County.

Action by Tobe South against the Philadelphia Fire & Marine Insurance Company. Judgment for defendant, and plaintiff appeals. Affirmed.

G. G Rawlings, of Harlan, for appellant.

Frank M. Drake, of Louisville, and Hall, Lee & Snyder, of Harlan for appellee.

McCANDLESS J.

Tobe South brought this action against the Philadelphia Fire &amp Marine Insurance Company, to recover $600 on a fire policy for the destruction by fire of an Oldsmobile auto. At the close of all the evidence a directed verdict was returned in favor of the insurance company, and South appeals.

The policy sued on contains the following provision:

"Other Insurance.--No recovery shall be had under this policy if at the time a loss occurs there be any other insurance covering such loss, which would attach if this insurance had not been effected."

Originally the policy was issued for $800, but the company concluded that this was too much, and reduced the amount to $600, giving notice to South of its action, and, returning to him one-fourth of the premium, all of which he accepted without objection.

Later South took out $500 additional insurance with another company, and was carrying $1,100 insurance on the car at the time of its destruction. These facts were pleaded as a forfeiture, the plaintiff relying on a waiver of the forfeiture clause. The evidence of the plaintiff shows that the machine cost about $1,100 when purchased in May, 1923 and he had added some extras, making his total outlay something over $1,200. The fire occurred in December, 1924; he did not qualify as to his knowledge of value at that time, but it had not been injured, and he thought it might be worth as much as a new car. Defendant's evidence shows its then value to have been about $700. In his evidence, appellant admits that the agent told him that the company would carry only $600 on the property, that the policy was reduced to that figure, and he was refunded the excess on the premium, but says that, "I told him (the agent) it was not enough insurance;" and, in referring to a subsequent conversation, says, "If I ain't badly mistaken I told him one day that I already got some more." Cross-examined as to these conversations, he said, "I told him I ought to have some more, I want to take some more insurance;" and, at another place, "I told him I had some more;" and says that the agent made no reply to these...