Standard Auto Ins. Ass'n v. West

• Decision Date: 23 May 1924
• Citation: 203 Ky. 335,262 S.W. 296
• Parties: STANDARD AUTO INS. ASS'N v. WEST.
• Court: Kentucky Court of Appeals

262 S.W. 296

203 Ky. 335

STANDARD AUTO INS. ASS'N v. WEST.

Court of Appeals of Kentucky.

May 23, 1924

Appeal from Circuit Court, Calloway County.

Action by W. M. West against the Standard Auto Insurance Association. Judgment for plaintiff, and defendant appeals. Reversed, with directions to grant new trial.

Eaton &amp Boyd, of Paducah, for appellant.

J. P Holt, of Murray, for appellee.

TURNER C.

In March, 1921, appellant issued to appellee, the owner of an Overland touring car, a policy of insurance wherein among other things it contracted to insure him against the loss of or damage to the car by fire in the sum of $900.

Thereafter in July, 1921, the car was practically destroyed by fire, and this is a suit on that policy; it being alleged that at the time of the fire the actual value of the car was $900.

In the first paragraph of the answer the issual and delivery of the policy is admitted, but it is denied that at the time of the fire the policy was in force, or that the value of the car at that time was any sum in excess of $125.

In separate paragraphs it is affirmatively pleaded by defendant that plaintiff made to it a written application for the policy of insurance, duly signed by him, wherein he represented and warranted that the car in question was a 1919 model, and that the actual cost to him therefor, including equipment, was $1,150; that each of said representations and warranties were false, although they were at the time relied upon by defendant as true, and except for such reliance the policy would not have been issued. It is alleged that each of these false statements were made by plaintiff for the purpose of misleading and deceiving the defendant and procuring the issual of the policy, and for the purpose of procuring the issual of a policy in a greater sum than the actual value of the car.

There were other defenses not necessary here to be considered. The reply denied the material allegations in the answer.

The court upon motion of the plaintiff transferred the action to the equity docket, to which defendant at the time excepted and, after the evidence was taken, a judgment was entered for the plaintiff in the sum of $600.

However, before final submission, and during the hearing of the case by the court, the plaintiff was permitted to file an amended reply over defendant's objection. That amended reply alleges--

"That, if the errors complained of in the answer appear in the application (and the application is in the possession of the defendant) then same were made by fraud, accident, or mistake of plaintiff. Said application was written by the agent of the defendant company, J. W. Doran, and not by plaintiff, and plaintiff did not read same when he signed same, but supposed that said agent stated the facts correctly."

Assuming for the purposes of this opinion that the word "plaintiff" is incorrectly copied in the allegation that the errors in the application "were made by fraud accident, or mistake of plaintiff," or that the same was a manifest error in the use of the wrong word, still, the plea of fraud or mistake is clearly insufficient, and did not authorize the introduction of evidence on that issue, even if...