87 Ky. 122 | Ky. Ct. App. | 1888
delivered the opinion of the court.
The appellant, Gr. H. Brumfield, on January 12, 1884, applied to the local agent of the appellee, the Union Insurance Company, for an insurance of eight hundred dollars upon his house in Paducah, Kentucky. It was agreed to, the general adjusting agent of the company being then present. For reasons unnecessary to be stated, the policy was not made out and delivered to the appellant for a couple of days thereafter, but was dated as of the day of the application, and was, therefore, an insurance upon the property for one year from that time. The policy, among many other conditions, provides :
“The assured by the acceptance of this policy hereby covenants and agrees ******** to notify the company if, at the making of this insurance, or at any time during its continuance, there shall be any other insurance applying to the property*124 herein, described, or any part thereof, whether the same be valid or not. This policy shall become void and of no effect by the failure or neglect- of the assured to comply with its terms, conditions or covenants.”
The appellant had on January 11, 1884, applied to the agent of several other insurance companies for a policy in some one of them for seven hundred dollars, upon the same house. It was also agreed to, but the premium was not paid or the policy delivered to the appellant for several days thereafter, and not until he had received the one issued by the appellee. It is admitted that the property was worth more than the amount of both policies. In this action upon the one issued by the appellee, it seeks to avoid its contract upon the ground of want of notice to it by the appellant of other insurance.
Such a provision as the one above cited is common in policies of fire insurance. It is a reasonable and proper one; and as such has been and should be upheld by the judiciary. Its object is to guard against over-insurance, which tends not only to create indifference upon the part' of the insured in caring for his property, but affords inducement to fraud. A prudent risk is never taken to the extent of the full value of the property. The owner is, therefore, interested in its preservation, and likely to be vigilant to avert loss. The interest of the community requires that this should be so, because it is interested in the welfare and responsibility of a business which now so largely protects its enterprise and capital. Public policy, therefore, as well as the proper protection of the un
At the close of the testimony the court, at the instance of the appellee, instructed the jury peremptorily to find for it, and of this the appellant now complains. There is evidence tending to prove notice of the character above stated. It is true the tes
The policy does not provide how or when the notice of other insurance shall be given, save it must, of course, be before a loss; nor does it indicate how specific it shall be. Courts are prompt to seize hold of any circumstance indicating an election to waive a forfeiture, or any agreement to do so upon which the party has relied and acted. Any agreement, declaration or conduct upon the part of an insurance com. pany, which is reasonably calculated to and does create a bona fide belief upon the part of the insured that a certain course of action upon his part will not lead to a forfeiture of his contract will, and in reason ought to,, estop the,company from insisting upon it, although the express letter of the contract may provide for it. The leaning of the courts in such a case Is properly to the insured. The great mass' of persons with whom
Here the. notice of other insurance did not, by the terms of the policy, have to be given or appear in any particular way. . The waiver of the right to forfeit the policy by reason of it did not have to be indorsed
According to the appellant’s testimony the agent of the appellee knew that the insured intended to divide his insurance by taking out another policy in another company, and accepted his application with this understanding. The value of the property was known, and the amount of the additional risk was fixed. The entire insurance was to be divided between the two companies ; and it appears that the second policy did
The question should have been submitted to the jury, under proper instructions, and the judgment is reversed, and cause remanded for a new trial in' conformity to this opinion.