140 Ky. 406 | Ky. Ct. App. | 1910
Opinion of the Court by
Affirming.
These two cases were heard in one trial below, and will he considered together on this appeal.
Appellee owned two tracts of land, one of thirty-two acres, worth about $1,000, and one of four acres upon which were situated the dwelling house, store house and stock of goods, worth about $3,300. "When appellee applied for these policies, there were upon the 4-acre and 32-acre tracts of land mortgage liens, unreleased of record, aggregating $4,900. One of these mortgages was for $1,500, one-lialf of which appellee claims to have paid at the time of the application. In each of the applications, under the head of incumbrances, are the following questions: ££Is the land incumbered?” and ££Is the personal property incumbered?” In each case the answer is ££No.”
Shortly after the fire, appellant’s adjuster went to Owen county to settle the loss. He carried with him a copy of appellee’s original application. According to his testimony, he and Mrs. Ford read over to appellee the latter’s answers in the original application. He then obtained from appellee an -affidavit to the effect that his answers in the original application were true. Prior to that time he had ascertained that there were mortgages on the property. When he secured appellee’s affidavit he made up his mind to resist payment of the policy. He was not deceived at the time, for he knew of the existence of the mortgages.
The testimony for appellee is to the effect that appellant’s local agent approached him for the purpose of getting him to take out the insurance; he did not apply to the agent. The agent did not ask him if the real estate was incumbered; asked him if he owned the property and if the stock of goods was mortgaged; never at any time asked him if there was a mortgage upon the real estate. He did not read the application or hear it read; supposed it contained the answers which he had made to the agent. The latter filled out the application.
Appellee brought these two actions to recover on the policies in question. Appellant made no claim that the property insured was not worth what appellee represented it to be. It is not even suggested that appellee was guilty of any wrong-doing in connection with the fire. Appellant defended upon three grounds: First, that appellee falsely and fraudulently stated in his applications that there was no incumbrance upon the real estate; second, that he fraudulently concealed from appellant the existence of mortgages on the real estate which were so large as to be material to the risks; third, that he swore falsely to material facts after the fire for the purpose of getting a settlement. . Upon the trial of the case the jury returned a verdict in favor of appellee for the full amount of the two policies. To reverse the judgment based thereon, these appeals are prosecuted.
It is first insisted that the court erred in permitting appellee to testify in his own behalf after he had cross-examined. appellant’s witnesses upon new matter and thereby made the witnesses -his own. This, it is contended, was in violation of subsection 3 of section 606 of Ihe Civil Code, which is as follows: “No person shall testify for himself, in chief, in an ordinary action, after introducing other testimony for himself, in chiefj nor in an equitable action, after taking other testimony for himself, in chief.” Manifestly, this section has no appli
It is next insisted that, inasmuch as the mortgage liens were equal to, if they did not exceed the value of the real property insured, appellant was entitled to a peremptory instruction on the ground that said liens were, as a matter of law, material to the risks. Even assuming this to he true, there was still left to the determination of the jury the question whether or not appellee falsely represented in the application that there were no incumbrances on the real estate, or whether or not he fraudulently concealed from appellant the existence of such liens. The rule in this state is that the insured has the right to assume that the company has made inquiries of him touching every material fact affecting the risk, and to avoid the policy it must be found, not only that the concealed matter was material, hut that it was intentionally and fraudulently concealed. (Lancashire Insurance Co. v. Monroe, 101 Ky. 12.) So, too, if the insured gives correct answers to the only questions asked of him, and the agent who fills' out the blank inserts in the application answers to questions not asked of the insured, and the insured signs the application without reading it or knowing of the false answers so inserted, he is not responsible for the answers so made. (Phoenix Insurance Co. v. Coomes, 14 Ky. Law Rep. 238.) In the case before us, appellant’s agent had no distinct memory
When we consider the circumstances under which the affidavit after the fire was obtained from appellee, it is not surprising that the jury placed no' stress rxpon this matter, which was fairly submitted to them in the instructions of the court.
While the instructions given by the trial court are not altogether free from criticism, we conclude that, upon the whole case, appellant’s defenses were fairly submitted to the jury; and that its substantial rights were not prejudiced by the errors complained of.
Judgment affirmed.