128 Ky. 43 | Ky. Ct. App. | 1908
Opinion op the Court by
Affirming.
The appellant, Aetna Life Insurance? Company of Hartford, Conn., issued to the appellee, C. C. Clay-pool, an accident policy insuring him for a term of threec. months from the 6th day of November, 1905, against the loss of life, limbs, sight, or time. The policy was .a combination accident policy, the principal sum of which was $5,000; and under its terms the appellee was insured against the loss of his life by accident in the sum of $5,000, and if he sustained an accident by which he suffered the loss of his right hand at or above the wrist he was to receive one-half of the principal sum, to wit, $2,500. There were several other indemnities set forth in the policy not necessary to be stated with particularity, among which was a weekly indemnity of $25, if by accident the insured received injuries which resulted in a total incapacity to carry on his business. During the life of this policy the appellee, after returning home from a day’s hunt, undertook to clean his gun, with the result that it was by accident fired; the load of shot being discharged into appellee’s right hand, inflicting such injury as necessitated the amputation of the whole hand at the wrist. Afterwards, having given the insurance company notice of his injury as
So far as the judgment sustaining the demurrer to the fourth paragraph is concerned, we deem it sufficient to say that the court was manifestly right, as the paragraph in question was wholly without merit. The first paragraph of the answer admits the execution and delivery of the policy sued on, but denied any indebtedness to plaintiff under it. In the second paragraph the defendant alleges that the policy was void because .of the false statement of the insured in the application for the policy as to the amount of his weekly earnings, having stated therein that he was earning more than $40 per week, when as a matter of fact he was earning less 'than $40. It charges that this representation was material to the risk, was relied upon by the insurer, was made for the purpose of obtaining the policy, and was false and fraudulent. The third paragraph relies upon a provision in the policy, that, if the ip jury complained of was caused by or due to unnecessary exposure to obvious risk of injury or obvious danger, the liability of the insurer would be only óne-fifth of the amount otherwise payable, to wit, $500. The paragraph con
After the issues were made up the defendant company tendered two amendments to its original answer, in one of which it is stated that the contract sued on is a Tennessee contract, and in the other it is stated that it is a Connecticut contract, and pleading the law in those states in bar of appellee’s claim. The court refused to permit either of these amendments to be filed, and of this ruling the defendant now complains. It seems to us that the fact as to whether the policy sued on was a Tennessee, a Connecticut, or a Kentucky contract was peculiarly within the knowledge of the company issuing it, and it was its duty to state all of its defenses at the time it filed its answer; and, as there is no suggestion in the record of any reason why the defenses sought to be set up' in the amendments were not state# in the original answer, we cannot see that the trial court abused his discretion in refusing to allow them* to be filed, tendered, as they were, long after the issues were made up, and, indeed, at least one of them was tendered pending the trial of the case, and after the evidence was all in. When the case was called for trial, so far as the pleadings were concerned, there were only two defenses available to- the appellant — that contained in the second paragraph, and that set up in the third paragraph. A trial resulted in a verdict for the plaintiff for the amount claimed in the petition, and to reverse the judgment based upon this verdict the defendant company is here on appeal.
We are of the opinion that the trial court erred in
There was, then, really but one issue to be tried — ■ whether or not the loss of the insured’s hand was the result of his unnecessary exposure of himself to an obvious danger. This question was properly submitted to the jury under the instructions of the court, and they found adversely to the appellant. The question was an eminently appropriate one for the jury to determine, and it is not our province to set aside their verdict under the facts of this case. Undoubtedly the testimony discloses, a state of facts which would have authorized. the jury to reach the opposite conclusion1, and, if they had, we should have' declined to disturb their verdict; but it is equally true that there was sufficient evidence for the conclusion reached by the jury, and we therefore leave the verdict as it is.
Viewing the whole case, we are of opinion that appellant has no substantial complaint either of the verdict of the jury or the ruling's of the court. Therefore the judgment is affirmed.