128 Ky. 389 | Ky. Ct. App. | 1908
Opinion op the Court by
Revers-
There is no clause in the policy of insurance providing that the company should not be liable if the property was destroyed by the insured. The absence, however, of such a stipulation would not render the company liable- if the destruction of the property was caused by the voluntary, fraudulent, corrupt, or wrongful act of the insured. The paragraph of the reply in question is not aptly pleaded. It would have been more in accordance with the rules of good pleading if it had stated that Bindell, if he burned the barn, did not at the time have mind, enough to know the nature or quality of his act, and was laboring under such defect of reason as not to be responsible for his conduct, or that, as a result of mental unsoundness, he did not have sufficient will power to know right from wrong hr govern his actions. But, although technically defective, we are not prepared to -say that the plead
If Bindell, while insane, destroyed -the insured property, the company can not under the conditions of this policy escape liability for the loss upon this ground. Unless BindelPs act in destroying the property was fraudulent, voluntary, or intentional, the company is bound. It is well settled that, although the negligence or carelessness of the insured may cause or result in the destruction of his property, the company will be liable, unless the carelessness or negligence is of such a character, as to amount to fraud or willful misconduct on his part. Ostrander on Insurance, p. 192; 1 Wood on Insurance, p. 274. In 19 Cyc., p. 831, the rule is thus stated “In the absence of fraud or design on
‘ ‘ The law is well settled that insurance companies are responsible for losses caused by a risk insured against, notwithstanding such loss may be directly contributed to by the negligence or carelessness of the assured or its agent.” There is no- conflict in the authorities upon this proposition. It will thus be seen that to relieve' the insurer from liability the destruction of the property must have been caused or brought about by the fraudulent design, voluntary act, or intentional misconduct of the insured. Accepting this doctrine as sound, it necessarily follows that if the insured did not at the time have mind enough to know the nature or quality of bis act, and was laboring under such a defect of reason as not to be responsible for his conduct, or as a result of mental unsoundness he did not have sufficient will power to know right from wrong or govern his actions, the destruction of the property by him would not relieve the company. Under the conditions stated, the act of the insured could not have been fraudulent because there can be no actual fraud in the absence of an intent to commit it. It could not be voluntary or intentional because he did not havd sufficient mind and memory to do a vol
For the error in sustaining the demurrer to the reply, the judgment must be reversed, with directions for a new trial not inconsistent with this opinion.