Germania Insurance v. Ashby

112 Ky. 303 | Ky. Ct. App. | 1901

Opinion oe the court by

JUDGE WHITE —

Aittrming.

This is an action on a policy of insurance covering a stock'of groceries and the building wherein they were kept. The policy was for $á00 on the stock and $100 on building, and the action seeks to recover these sums for a total loss. The answer admitted the issual of the policy, but denied the loss of any goods, and pleaded that appellee in his application had falsely stated that he was the owner in fee of the land, when in fact he had no title "thereto. It was also pleaded that satisfactory proof of loss had not been furnished the company. Appellee1 admitted signing the application, but said he did not read the application, which was written by the agent of appellant; that he started, to read the- -application, but was advised by the agent that it was a mere form for liis own report to the company. He further pleaded, that, while he did not have title to the laud on which the house stood, he informed the agent at the time of the contract the exact state of the title — that he had a bond or writing agreeing to- make him title from the person from whom he purchased. Upon the issue thus presented, a trial was had, which resulted in a verdict and judgment for the full sum claimed.

At the threshold we are met with a question of jurisdiction of the appellant, which was presented by motion to quash the service of process on the- commissioner of insurance upon the affidavit that the appellant had withdrawn from this State, and ceased to do business herein. It is conceded that when appellant was admitted to do business in this State it filed its written consent that sérvice upon the insurance commissioner should be sufficient to notify it of all proceedings and .actions that anight be instituted. It stands admitted (by not being denied) that at the date -of the service the appellant had withdrawn from the State. The provision of the law which appellant complied with upon its admission to do business here reads: “Before authority is granted to any foreign insurance company to do business in this State, it must file with the commissioner a resolution adopted by its board of directors, consenting that service of process upon any agent of such company in this State, or upon the commissioner of insurance of this State, in any action brought or pending in this State shall be a valid service upon said company.” Kentucky Statutes, section 631. There is no provision in the law limiting this consent ‘to such time as the insurance company shall do business in this State. The object and purpose of the statute, supra, was to provide a mode of service to citizens who should desire to sue upon contracts of the insurance company, rather than- compel them to go to the State of the corporation for redress. If this consent is to be withdrawn as soon as the company withdraws, the provision, so far as the insurance commissioner is concerned, would be a useless provision. As long as the company is engaged in business here, service can be had on the agent; but where it ceases to do business, and has no agents, there is a necessity for some person upon whom process might be had. We conclude, therefore, when the reason of the statute is taken into consideration, that it is intended that the consent to service on the insurance commissioner is hot limited to the time-when the company is soliciting business here, but extends to all business that it may do while here. As long as a policy issued is in force, or loss thereunder remains unsatisfied, this consent to service on the insurance commissioner is binding. Society v. Muehl (109 Ky., 479); (22 R., 1378), 59 S. W., 520. We are therefore of opinion there was no error in overruling the motion to quash the service of process.

There is no denial by plea or in proof that appellee furnished proofs of loss. The denial is that sufficient proofs were furnished. It is not contended that appellant ever notified appellee of the insufficiency of the proofs submitted, or demanded further proof. However, it is pleaded and proven that appellant declined absolutely to p<ay before the suit was brought. Proof of loss is but a condition precedent to the action. It is not a condition upon .which liability exists. The liability is fixed by the fire; but before action there must be proof of loss, or a waiver thereof bjr the insurer. It has been repeatedly held that a denial of liability is a waiver of proof. Insurance Co. v. Clark (22 R., 1066), 59 S. W.) 863, and authorities there cited. It is shown that proofs of loss were furnished before suit was brought. Appellant produced one proof at the trial, and it is» included in the bill of exceptions.

The contract being admitted, and the loss total of the building and contents, and it being shown that proofs had been furnished, there remained but one question as to the stock lost (that of value), and but one’ as to the building (that of title), — as to whether the agent making the contract had notice of the state of the title. The court properly instructed the jury as to value. They were told that appellee could recover three-fourths of the value of the stock lost, not exceeding $400. This was according to the contract. The proof as to title was that appellee had a bond for title, and of this fact the agent writing the insurance was fully informed at the time, bio tice to the agent was notice to the company. Insurance Co. v. Wingfield (22 R., 271), 57 S. W., 456, and cases cited.

It has also been repeatedly held that the provision for an iron safe was not binding, and a failure to keep such safe or his books therein or out of the building will not avoid the policy when the agent of the company soliciting the insurance knew there was no such safe, and there is no consideration shown for such agreement. The reason for this rule is that such clauses are. conditions subsequent that operate as a forfeiture of the right to compensation for loss sustained, and the courts will never declare a forfeiture of a right, where there is any reason for an equitable estopped from such plea. Insurance Co. v. Heflin (22 R., 212), 60 S. W., 393; Insurance Co. v. Crist (22 R., 47), 56 S. W., 658, and cases cited.

The instruction as to the notice of title of appellee was proper, and, if there was such notice to the agent of the state of the title, appellee was entitled to recover the contract valuation of the house.

Under our statutes, all policies covering realty are valued policies, that is, the value placed in the policy on which che premium is paid is the value to be paid in case of loss and to such the three-fourths clause does not apply. The verdict as to notice, waiver or proof of loss, and amount of loss is fully sustained by the evidence.

Finding no error, the judgment is affirmed-