188 Ky. 742 | Ky. Ct. App. | 1920
Affirming.
John Golden• owned a dwelling house in Burnside,, which he sold to E. T. Simpson, who paid a portion of the purchase money in cash and executed notes for the balance, secured by a lien on the property. On July 28, 1917, the Hartford Fire Insurance Company issued to Simpson a policy insuring the property in the sum of $1,400.00. To protect the interest of Golden, a loss clause was attached, making the policy payable to Golden as his interest might appear. The notes for the deferred purchase money were transferred by Golden to others, who brought suit to enforce the vendor’s lien. The property was sold and Golden became the purchaser and executed bond with J. H. Gibson as surety. On the day of the sale, Simpson, with the written consent of the company’s agent, assigned the policy.to Golden and a loss clause was attached making the loss payable to Gibson. About a week after the property was purchased by Golden, it was destroyed by fire. This suit was brought by Golden, Simpson and Gibson to recover on the policy. On final hearing judgment was rendered in favor of the plaintiffs, and the company appeals.
The only error relied on for reversal is the action of the court in sustaining the demurrer tp the amended answer, which is as follows:
“Comes defendant, and in compliance with the order of the court to make its answer more definite and certain, amends first paragraph of answer, states that after the execution of the policy sued upon to E. T. Simpson, and while same was in full force and effect, but before the judicial sale on March 18th, 1918, an' assignment of the rights, title and interests of said E. T. Simpson to John Golden, on March 19th, 1918, as alleged in plaintiff’s petition, that said Golden with the fraudulent and wicked purpose of collecting the insurance on this policy did on diverse and numerous times and occasions, the exact dates of which defendant is not informed, wickedly, fraudulently and wrongfully urged the said E. T. Simpson to burn the property insured by said policy, and informed the said Simpson that if he would consent to the burning of said property that he would arrange to have the building burned, and that the said Simpson refused to consent to same, or to aid or be a party to the act or deed; that it was induced to make and consent to the
It will be observed that the amended answer presents the defense that Golden urged Simpson to burn the property, and informed Simpson that if Simpson would consent to the burning of the property, he would arrange to have the building burned, and that these facts were fraudulently concealed from the agent, who consented to the assignment of the policy from Simpson to Golden, and if the facts had been known by the agent, he would not have consented to the assignment. In support of the position that the allegations make out a case of fraudulent concealment, the argument is as follows: Because of the peculiar character of the contract of insurance, each party thereto must, to a large extent, rely upon the other. - Hence, there arises an obligation on the part of each to state to the other all facts material to the risk, and to make those statements correspond with the facts — to tell the whole truth and nothing but the truth — on pain' of making the contract voidable at the option of the other party. Yance on Insurance, pp. 250-251.
It may be conceded that where a contract of insurance is assigned by the insured with the consent of the insurer, a new contract is created identical in terms with the one assigned between the insurer and the assignee. Niagara Fire Insurance Co. v. Layne, 162 Ky. 665, 172 S. W. 1090.
To avoid an insurance policy on the ground of concealment it must appear that the fact relied on was ma
Judgment affirmed.