203 Ky. 112 | Ky. Ct. App. | 1924
Opinion of the Court by
Affirming.
Appellee, John R. Fallis, instituted two separate suits in the Franklin circuit court to recover for losses which he sustained and which he alleged were covered by insurance policies issued to him by the defendants in the said actions, the appellants in these two appeals. The petitions and the answers filed thereto were- identical in character in each action and by agreement of parties they were consolidated and heard together, and as the same questions are involved upon this appeal, we will consider them together.
In the petitions appellee sought a judgment against the appellants on policies issued by them in which they insured him against loss by reason of the destruction by fire of his store and dwelling in the city of Frankfort. Appellants admitted that the policies were in force at the time the property insured was totally destroyed by fire, but by way of defense they pleaded affirmatively that the loss was of the character expressly excluded from coverage under that exception in the policies which provided that the companies “shall not be liable for any loss or damages caused directly or indirectly by invasion, insurrection, riot, civil war or commotion, or military power or by order of any civil authority or theft or by neglect of the insured to use all means to save and preserve the property at and after the fire.” By amended answers the appellants interposed the further defense that the property was totally destroyed by the voluntary and wrongful acts of the insured, and that for that reason also they were not liable to' him for the loss he- sustained. •
The court below, being of the opinion that these facts failed to constitute a valid defense to the policies, peremptorily instructed the jury to find a verdict for tbe appellee in each case, and entered judgments therein awarding him the full - amounts -sued for. Whether or not the court erred in granting the peremptory is the sole question involved upon these appeals.
Apparently, appellants abandoned the defense set up in their original answers, wherein it was charged that the loss sustained by appellee was expressly excluded from coverage by that clause of the- policies which exempted the companies from losses caused by “invasion, insurrection, riot, civil war or commotion or a military power or by order of any civil authority or theft or by neglect of the insured to use all means to save and preserve the property at and after the fire.” Manifestly, this clause is not applicable to the state of facts proven in this case. American Central Insurance Co. v. Stearns Lumber Co., 145 Ky. 255; Spring Garden Insurance Co. v. Imperial Tobacco Co., 132 Ky. 7. However, we find it unnecessary to discuss this defense at length since it was abandoned in the lower court and is not urged or argued upon these appeals. But it is earnestly insisted
“Except where the policy stipulates that the insurer shall not be liable for loss caused by the neglect of the insured to use all reasonable means to save and preserve the property when it is endangered by fire, mere negligence or carelessness on the part of the insured or of his servants, although directly causing or contributing to the loss, is one of the risks covered by the insurance and does not relieve the insurer from liability; and this rule applies even where, the contract excepts losses originating ‘by design in the assured,’ if .the negligence does not amount to design. However, even though there is no stipulation in the. policy to that effect, if*117 the insured’s, acts of negligence or misconduct are such as to show a wilful and fraudulent purpose or design to destroy the property, he cannot recover on the policy. ... ”
We find substantially the same statement so far as applicable to the cases at bar in 14 R. C. L. 1223, where it is said:
“Fraudulent losses are necessarily excepted from a fire policy upon principles of general policy and morals; for no man can be permitted, in a court of justice, to allege has own turpitude as a ground of recovery in a suit. ... ”
These principles have been approved by this court in numerous decisions. Bindell v. Kenton County Assessment Insurance Co., 128 Ky. 389; North River Insurance Company v. Walker, 161 Ky. 373.
We have never been confronted with the exact situation the record in this case presents, nor has any other court of last resort so far as we have been able to discover. All the decisions and authorities we have examined, including those referred to above, involve cases in which the insured either intentionally set fire to the property insured or wrongfully permitted it to burn under such circumstances as clearly indicated a fraudulent intent on his part. Under these conditions the courts have universally held that the insured was barred from recovery because of his voluntary and wrongful acts, and it is both right and proper that he should be. Nor do we think the doctrine should be limited strictly to cases of the foregoing character. It applies with equal force to any loss sustained by an insured as the result of intentional and wrongful acts on his part that are either calculated to cause the loss or that might reasonably be expected to do so if, in fact, such wrongful acts smack of fraud and are the proximate cause of the loss. But we-have no such case here. There'is no pretense of fraud or intent on the part of the insured, nor are there any circumstances from which either can be inferred.
Under the pleadings the burden of proof rested upon appellants, and it was incumbent upon them to establish every essential element necessary to constitute a defense. This they wholly failed to do. It is true the evidence showed beyond question that appellee, after having shot two police officers, fled to his home, the property insured in the policies, and there fired upon and wounded two
Appellee was offering no resistance to the sheriff and his posse at the time, and they were not compelled to shoot either in self-defense or in order to effect his arrest; they fired solely for the purpose, of searing appellee and, if he were in the house, thus force him to come out and submit to arrest. There was no intention of shooting appellee or burning his house, nor had his misconduct made such action necessary or even apparently necessary; the sheriff simply desired, and he so states, to minimize the danger which he thought might later arise. This was clearly an unlawful exercise of authority on his part and in.no sense the proximate result of appellee’s misconduct, and he cannot be held responsible thereafor. Section 40, Criminal Code; section 4583, Kentucky Statutes; American Central Insurance Co. v. Stearns Lumber Co., 145 Ky. 255. We are, therefore, convinced that while appellee was guilty of the grossest sort of misconduct, it was not the proximate cause of the destruction of his premises; and that being true, the lower court properly sustained his motion for a directed verdict in each of these two cases. Wherefore the judgments are affirmed.