206 Ky. 202 | Ky. Ct. App. | 1924
Opinion op the Court by
Affirming.
Alleging an insurance contract, plaintiff sought recovery of $2,000.00 for the destruction of his residence
Defendant appeals upon the sole ground tbat tbe pleadings did not sustain tbe judgment. The petition is as follows:
“Tbe plaintiff, W. S. Hensley, states tbat the defendant is a stock company organized and existing under tbe laws of tbe state of New York, and at all times hereinafter mentioned was engaged in tbe fire insurance business in Kentucky and in Harlan county, and bad an office and place of business at Harlan, Kentucky, under tbe style name of Cumberland Insurance Agency; tbat on August 12, 1922, he was tbe owner and legal titleholder of one frame dwelling bouse situated in Harlan county, state of Kentucky, near Bost Point and on said date defendant by and through its said agency at Harlan, Kentucky, executed and delivered to him fire insurance policy number 13035779, by tbe terms of which it undertook to and did insure bis said dwelling bouse against all direct loss or damage by fire for a period of three years thereafter, ending August 12, 1925, which policy was for tbe sum of $2,000.00; tbat after-wards on the 9th day of May, 1923, bis said dwelling bouse was totally destroyed by fire and by reason thereof defendant then became indebted to him under said fire insurance policy in tbe full sum of $2,000.00, and although be has complied with all tbe provisions of said insurance policy, and demanded payment of said sum from tbe defendant, no part of same has been paid. Said policy is filed herewith and made part hereof. ... ”
It is urged tbat this pleading is fatally defective for tbe following reasons: (1) Tbe contract must be construed as oral, and tbat no consideration therefor is stated; (2) tbat it is not alleged tbat plaintiff owned tbe house at tbe time it burned; (3) that there is no statement as to tbe value of tbe bouse at tbe time it burned.
Tbe word “policy” is thus defined in Webster’s new international dictionary. “A certificate of insurance; any writing whereby a contract of insurance is made; a document containing a contract made by an insurance company with a person whose property or life is insured;
A reference to the sections of Kentucky Statutes dealing -with the subject will demonstrate that the word “policy” is treated as meaning a written contract of insurance. The petition gives the number of the policy and states that it was executed and delivered to him (plaintiff) by the defendant, and that “said policy is filed herewith and made part hereof.” These allegations when used with reference to a word signifying a written instrument constitute a declaration on a writing, and such-is the usual form of declaration upon notes and other instruments of like character. It is true that the policy itself was not filed with the petition but on motion of appellant the court could have required that to be done. We are of the opinion that the petition is based upon a written contract and, therefore, the numerous authorities holding that in a declaration upon a parol contract the consideration should be stated, do not apply. In declaring upon a -written contract it is unnecessary to state the consideration. Section 471, Kentucky Statutes; Bronston’s Admr. v. Lakes, 135 Ky. 173.
As to the second ground, the petition alleges that the plaintiff was the owner and titleholder at the time of the execution and delivery of the policy, and thereafter refers to the property as “his.” We think the use of the personal pronoun, following the direct allegations mentioned, is sufficient to show that he was the owner throughout the period covered. Heath v. Conway, 1 Bibb 398.
Lastly, it is argued that it is not stated that the property destroyed had some value. We do not deem such allegation essential in this case. Section 700, Kentucky Statutes, provides that insurance companies shall be liable for the full estimated value of the property insured, as the value thereof is fixed on the face of the policy; this to be diminished to the extent of any depreciatoin occurring between the dates of the policy and the loss. When a policy is thus issued on real property it imports the value fixed therein. This may be diminished as indicated, but the plaintiff is not required to negative depreciation in the petition.
'Perceiving no error the judgment is affirmed.
