11 S.W.2d 415 | Ky. Ct. App. | 1928
Reversing.
The appellant issued a policy of fire insurance to the appellee, W.R. Johnson, on the latter's dwelling house, stock barn, and certain personal property. The property was burned on August 5, 1926. Thereafter, appellee brought this suit on the policy and recovered a judgment for $1,900.
The appellant did not deny any of the allegations of the petition, but in its answer set up two affirmative defenses: (1) The claim for the loss was forfeited because of the failure of the assured to furnish proofs of loss within 60 days from the fire; (2) that the insured property was set on fire and burned by persons acting for the insured, with his knowledge, consent, and procurement. These facts in avoidance, pleaded in the answer, were denied by the reply. The appellant relies upon the following *595 grounds for a reversal of the judgment: (1) Failure of the trial court to award it the burden of proof; (2) misconduct of counsel for the plaintiff in the argument of the case before the jury; (3) errors in the instructions.
The insurance contract here involved is a farm fire insurance contract as defined in Staples v. Continental Insurance Co. of New York,
Appellant also complains of certain remarks of counsel for the appellee in his argument before the jury. These remarks as set out in the bill of exceptions are as follows:
*597"W.R. Johnson and Chester Bandy had been tried in the Warren circuit court at its criminal term on the charge of burning the house and barn involved in this case, and were acquitted by a jury; John A. Logan, the present Commonwealth's attorney, and one of the counsel for the defendant, in this case, had prosecuted the criminal ease at that time, and was still prosecuting the said parties in trying to prevent Johnson from recovering his insurance money."
Ordinarily these remarks would constitute prejudicial error. Liverpool London Globe Insurance Co. v. Wright,
The court instructed the jury that it was the duty of the plaintiff, within 60 days from the date of the fire and loss, to furnish to the defendant company proof of loss. Appellant insists that the court should have instructed the jury as to the kind of proof of loss the assured was required by the policy to furnish to the company. The defendant, however, relied solely on the defense that no proof of loss was furnished, and no issue was made as to the sufficiency of the paper setting out the statement of the loss and claimed by the plaintiff to have been delivered to the defendant. Whether or not the evidence introduced by plaintiff tending to show that this paper was delivered to the defendant was sufficient to take the question of delivery to the jury, we will not determine, since the evidence on another trial may be substantially different from the evidence now before us.
For the reasons indicated, the judgment is reversed, with directions to grant appellant a new trial and for further proceedings consistent herewith.