186 Ky. 81 | Ky. Ct. App. | 1919
Opinion of the Court by
Reversing.
On July 17, 1916, S. W. Butler, at tire instance of an agent for the Indiana National Life Insurance Company,
This suit was brought by S. W. Butler against, the Indiana National Life Insurance Company to recover the amount paid by him. It was charged in the first paragraph .of the petition that defendant’s agent fraudulently represented that the surrender value of the policy would he $2,772.00 at the end of eleven years, that when the policy was delivered it was ascertained that this representation was false and that the policy was returned to the defendant; that had it not been for the false representations of the defendant’s agent he would not have given his consent for his son to enter into the contract, and that he gave his consent to his son’s taking out the insurance in the belief that the representations were true. In the second paragraph, plaintiff pleaded in substance that he was induced to sign the note sued on by the fraudulent representation that his son was merely signing his name to an application for insurance. The case was submitted to the jury under both issues and the jury returned a verdict in favor of plaintiff for $294.00. The defendant prays an appeal.
Defendant’s demurrer to the first paragraph of the petition should have been sustained. Even if it he conceded that the agent misrepresented the surrender value of the policy at the end of the eleventh year, and plaintiff was thereby induced to give his consent to his son’s taking out the insurance, plaintiff was not injured unless he was thereby induced to execute the note. Hence, in order that the first paragraph might state a cause of action it was necessary for plaintiff to allege that he was induced by the fraudulent representations of the agent as to the surrender value of the policy to execute the premium note. This he failed to do, and could not have done con
Another contention of defendant is that the court erred in authorizing the jury to find as an element of damages the attorneys’ fees expended by plaintiff in defense of the suit brought by the bank. In Hutchinson First Nat. Bank v. Williams, 62 Kan. 431, 63 Pac. 744, it was held that attorneys’ fees and expenses incurred in good faith by a bank in saving itself from loss by the fraud of a party who obtained from it a draft, and then caused the same to be cashed, are compensatory and not exemplary, and may be recovered in an action against the wrongdoer. Indeed, the prevailing rule seems to be that the reasonable expenses of prior litigation caused by the wrongful act of another, including compensation for attorneys ’ fees, may be recovered where the party incurring them acted in good faith in bringing his. action or making defense. 17 C. J. 809; Peoples B. L. & S. Ass’n v. Pickell, 56 S. W. 500.
On the other hand, if the prior litigation was unnecessary, there can be no recovery for expenses therein. On another trial the court will incorporate in the instruction on the measure of damages the question whether plaintiff acted in good faith in employing counsel to defend the suit brought against him by the bank.
Other errors are relied on, but we do not deem them of sufficient importance to merit discussion.
Wherefore the appeal is granted and the judgment reversed and cause remanded for new trial consistent with this opinion.