Opinion op the Court by
Reversing.
The appeal is from a judgment on a directed verdict in favor of the appellee, Mrs. Inez Daviess, for $1,000 in ber suit to recover that sum on a policy of insurance indemnifying her against robbery of jewelry and other chattels. The defendant denied that the plaintiff had been robbed, and also sought to avoid liability because of certain false representations, to be presently considered,
1. Mrs, Daviess testified that upon opening her front door in answer to the bell on August 8,1929, a man with a handkerchief over his face “stuck a gun in my side and told me to hand him over the jewelry I had on, which I did.” She immediately notified the police and the insurance company. One morning five months later all of her jewelry so taken from her, except a diamond ring, valued at $1,200, was found by herself in a plain envelope in her mail box. The articles returned were “a diamond bracelet, sapphires and diamonds, and another solitaire with small diamonds around it and onyx.” She could give no description of the robber except that he was a medium sized man wearing a cap. The plaintiff lived on one of the principal thoroughfares of the city of Louisville, and, while the hour at which she claims to have been robbed at her front door is not definitely stated, it appears that it was in the afternoon.
There was no other evidence concerning the robbery, and the trial court regarded the plaintiff’s evidence as conclusive, and hence that there -was no question of fact to be submitted to the jury. The ruling would have been proper if the evidence was not disputed or the witness impeached and if but one legitimate inference could be drawn. Western Union Tel. Co. v. Smith,
Probative evidence is testimony carrying- the quality of proof and having fitness to induce conviction of truth. It consists of fact and reason co-operating as co-ordinate factors. Jones on Evidence, sec. 9. Does reason co-operate with the verbal testimony in the case at bar? Does not the story itself carry in a degree some refutation and challenge the credibility of the witness? The unusual character of the evidence rather shocks one’s sense of the probabilities and tests his credulity. The alleged robbery was of such a character as to defy contradiction and all but prevent the'defendant from producing any evidence in support of its denial.
While no rigid rule can be laid down, it is universally accepted as a law of evidence that positive testimony may be contradicted by circumstances, or a witness may be so evasive, equivocal, confused, or otherwise uncertain as to make his credibility essentially a question for the jury. Chesapeake & O. Ry. Co. v. Booth,
The reason for the rule would seem to be that, as the credit due to a witness for veracity is founded in the first instance on the general and common experience of mankind, it follows that, if he gives testimony concerning a matter which is so at variance with that experience as to be classed as impossible, improbable, or seemingly fictitious, the presumption of absolute verity ceases or is destroyed. Such is the purpose and effect, for example, of impeachment of a witness by proving a bad reputation for veracity or immorality or conviction of a felony; or the rejection of a convicted perjurer. Out of this experience has arisen the maxim, “Falsus in uno, falsus in omnibus.” Jones on Evidence, sec. 2471.
We have a forceful application of the rule under consideration in Louisville & N. R. Co. v. Philpot’s Admr.,
The rule was applied in a case of this character in Kansas City Regal Auto Co. v. Old Colony Insurance Co.,
We are of the opinion that the nature of the facts of this robbery and attendant circumstances—no witness save the vitally interested plaintiff; the meager description of the robber; the act committed in broad daylight at the front door, on a prominent street in a large city; no clue as to the culprit; the mysterious return of all jewelry taken save one article of the approximate value of the insurance, and that returned in a rather fantastic method; and, we may add, the peculiar circumstances under which the policy was obtained—all raise such doubt that a reasonable inference may be drawn that the robbery did not occur. The evidence was of that character that put to test the credibility of the story, and the jury should have been permitted to determine the issue.
2. Since there may be another trial of the case, we should consider other defenses interposed, concerning which the principal arguments have been made before us.
The issuance of the policy was under unusual circumstances. One night in April, preceding the alleged robbery, a friend of the insured, from her home and in her hearing, called Robinson, a well-known insurance agent, and inquired whether he sold this kind of insurance. Upon being advised affirmatively he asked him to have issued the policy in suit and gave the name and address of the appellant. In a day or two Robinson had the policy prepared in his office. Without any information concerning the subject-matter, there was written *363 in tbe policy answers to certain questions contained in wbat appears to be intended as a copy of tbe application. Robinson testified tbat be wrote a letter to Mrs. Daviess transmitting tbe policy and tbe bill for tbe premium^ in wbicb letter be called ber attention to tbe questions and answers and requested tbat sbe return tbe policy for correction if tbe answers were incorrect. In a few days a remittance for tbe premium was duly received, but no reply to tbe letter. Mrs. Davies testified sbe received tbe policy and a bill, but did not get tbe letter. Sbe put tbe policy away without reading it and sent a cheek for the premium.
Tbe evidence of tbe contents of tbe letter was not competent, as was ruled by tbe trial court. Robinson testified tbat be remembered signing tbe letter and policy, and tbat they and tbe bill for the premium were attached, and recalled tbat they were accompanied by tbe addressed envelope. In tbe usual course of business, after being signed, tbe letter and inclosures were removed from bis desk and posted by some of tbe stenographers or clerks in tbe office. Since it was not shown tbat the letter was stamped and posted, tbe evidence was insufficient to raise tbe presumption of delivery to tbe addressee. Home Insurance Co. v. Roll,
3. Tbe policy recites tbat one of tbe considerations for tbe contract of insurance was:
‘ ‘ Tbe statements contained in tbe schedule hereinafter set forth, wbicb statements tbe assured, by tbe acceptance of this policy makes and warrants to be true.”
Statements in this schedule numbered 10 and 11 are tbe only ones involved and are as follows:
“10. Tbe assured has not sustained any loss or damage nor received nor claimed indemnity for any loss or damage by burglary, theft or robbery in tbe premises covered hereby or elsewhere within tbe last five years, except as herein stated. ‘No exceptions.’
“11. No burglary, theft, or robbery insurance applied for or carried by tbe assured in the premises *364 covered hereby or elsewhere has ever been declined or cancelled by any company within the last five years as herein stated. No exceptions.”
The company pleaded that the statements were false, fraudulent, and material to the risk, and that the policy would not have been issued had the truth of the matter been stated. Without the hearing of the jury, evidence was placed in the record as avowals that, within three years before the policy was issued, the plaintiff had collected $675 from another company on account of the theft of some jewelry and a few articles of clothing, and that the company had canceled the policy. The legal point presented here is whether the insured is bound by the statements in the policy, and whether they are available as a defense, their falsity and other essential elements being established. We may first note that the designation in the policy of such statements as warranties does not make them so, for it is in conflict with section .639 of the Kentucky Statutes, which declares that they are to be regarded only as representations, and that they shall not prevent a recovery under the policy unless material or fraudulent. This statute converts statements designated as warranties, with specified effect of a breach, into representations with the resultant effect of falsity. Security Life Ins. Co. of America v. Black’s Admr.,
In Teich v. Globe Indemnity Co. (Mo. App.),
Some distinctions may here be noted between representations and conditions or covenants of a contract. A representation precedes the contract of insurance, is an inducement for its making, and incidental thereto. It relates facts upon which the insurer determines whether it will accept the risk—not continue it. The insured is not bound by the exact letter of the statement, for it need not be literally true. The policy is not voided, if matter, though relevant to the transaction, is not material to the risk. It is material when it communicates any fact important to the matter of the risk that may be reasonably supposed to influence the judgment of the insurance company in undertaking the risk, or in calculating the premium. A warranty is a part of the contract itself upon the literal truth or fulfillment of which the validity of the entire contract depends. The falsity or breach of a warranty releases the insurance company from liability, even though the insured was innocent of its presence in the policy the same as would a mutual undertaking in any other kind of contract. The question of materiality of the statements does not arise in the case of warranty. 3 Bouv. Law Dict., page 2899; May on Insurance, sec. 156; 4 Cyclopedia of Ins. Law, Couch, sec. 818; Petit v. German Ins. Co. (C. C.),
*366
Our statute controlling’ representations does not apply to executory stipulations or promissory warranties contained within the policy as conditions subsequent, such, for example, that the insured will not increase the fire hazard by mortgaging’ the property after the policy was issued (Niagara Fire Insurance Co. v. Mullins,
We halve gone to some length to show that the Teich and the Mullins cases (to the extent noted) which are relied upon so confidently by the appellant are not controlling.
We do not conceive that there can be any retroactive representations, but there may be contained in the contract itself stipulations which, though not signed by the insured, as stated ifi Hartford Fire Ins. Co. v. McClain,
4. The court sustained exceptions to those parts of the deposition of the superintendent of defendant’s burglary department in which he testified that, had his company been correctly informed as to the previous loss and collection of insurance of this character by the plaintiff and of the cancellation of the risk by another company, his company would have made an investigation and would have been guided by the facts disclosed in the acceptance or rejection of the risk. The action of the lower court was proper, not only because he did not state what his company would have done under the particular facts which might have been disclosed by an investigation, but also for the stronger reason that the question, is not what the particular company alone would have done, but whether, acting reasonably in accordance with the usual custom, practice, or usage of insurance companies writing this kind of business, it would have issued the policy had the truth been disclosed by the applicant and the facts had been revealed by a subsequent investigation. The facts are the important thing and not the practice of investigating. King v. Ohio Valley Fire & Marine Ins. Co.,
The judgment is reversed, and the case remanded for consistent proceedings.
Whole court sitting.