8 S.W.2d 408 | Ky. Ct. App. | 1928
Reversing.
The Home Insurance Company seeks by this appeal to reverse an $850 judgment recovered against it on a policy of insurance by J.H. and Joanner Porter, whom we shall refer to as the plaintiffs.
The insured property burned between 7 and 8 o'clock on the evening of July 7, 1925. When plaintiffs sued on this policy, the company by its answer pleaded that the policy contained a provision that, if proof of loss was not furnished within 60 days after the fire, all claims under the policy were forfeited. This 60-day clause so pleaded is very similar to the clause pleaded in the case *281
of Staples v. Continental Insurance Co.
After the evidence had been heard, the court gave to the jury an instruction to find for the defendant, unless they should believe from the evidence that after the fire the defendant's adjuster A.S. Jones instructed the plaintiffs to make up a proof of loss or list of things lost in the fire, and deliver it to the agent Robertson, and that, if they did so, within 60 days, or offered so to do, then the jury should find for the plaintiffs. This much of this instruction submitted to the jury an issue made by the pleadings, and was correct; but the instruction continued, and further said to the jury that, if they believed the agent Robertson told the plaintiffs that the defendant's agent Jones would come and settle their loss, and it was not necessary for them to do anything else in the matter, and that, by reason thereof, the plaintiffs were led to believe they would not have to furnish any other proof of loss, and that this happened within 60 days, then the law is for the plaintiffs, and the jury should so find. The latter part of this instruction submitted to the jury an issue not made by the pleadings, and was therefore erroneous. Not only is there no charge in the pleading that Robertson gave any such assurance to the plaintiffs, but, on the contrary, it is specifically *282 charged by the plaintiffs in their amended reply that Robertson not only refused to receive this statement of loss, but gave no further instructions regarding the preparation of that proof, or concerning any other thing that these plaintiffs should do relative to adjusting and settling the loss, and made the specific charge that it was the adjuster — that is, A.S. Jones — that kept assuring the plaintiffs that this loss would be adjusted and paid.
The judgment is reversed.