Opinion
Decided December 11, 1925.
Appeals from Clark Circuit Court.
C.F. SPENCER for appellant.
BEVERLY R. JOUETT and O'REAR, FOWLER WALLACE for appellees.
Affirming.
The appellant, whom we will refer to as plaintiff, began this litigation by instituting suits against the following insurance companies, seeking to recover of them the following amounts: American Fire Insurance Company, $2,000.00; Henry Clay Fire Insurance Company, $1,500.00;" London Assurance Corporation, $1,000.00. The cases were heard together, and the trial resulted in a judgment for the appellees, whom we will refer to as the defendants.
On June 22, 1920, the plaintiff made application to the Hurst Home Insurance Company for $4,000.00 insurance upon a dwelling house situated on a farm in Clark county, Kentucky. The agent of that company examined the risk and advised plaintiff that he could not write him more than $3,000.00 insurance on the property. Thereupon plaintiff executed an application for that sum and a policy for that amount was issued to him. That policy contained this provision:
"The insured shall take out no insurance in any other company, either on the within described property or property contained within buildings insured in this company, excepting live stock, without the written consent of the general manager and secretary; and if such other insurance is taken out by the insured without the written consent of the general manager and secretary, then and in that event this policy shall be null and void."
After this insurance had been in effect for some time, the plaintiff wrote the following letter:
"Winchester, Ky., March 10, 1921.
"Hurst Home Insurance Co., Millersburg, Ky.
"Sirs:
"In looking over my policy I see your company did not increase the amt. of insurance on brick frame metal roof dwelling used by tenant on my McKinney farm 7 mi. N.W. of this city. $3,000.00 is now carried by your company I asked for $1,000.00 increase. Think residence worth $6,000.00. I wish to notify the company that I am applying for additional insurance on the property in another company, which will no doubt be obtained.
"Yours truly, H.V. THOMPSON."
On the next morning, about 6:30, and before he had mailed this letter, he called the agent of the American Fire Insurance Company and placed with him $2,000.00 insurance upon this property, and at the time, told him he was cancelling some other insurance in the Hurst Home. He then called the agent of the Henry Clay Fire Insurance Company, placed with him $1,500.00 insurance and said he wanted to carry $4,500.00 insurance on the building, and was cancelling his Hurst Home insurance. Next he called the agent of the London Assurance Corporation, placed $1,000.00 insurance with him, and told him that he was taking out some insurance on this dwelling and that he had a policy in the Hurst Home for $3,000.00. After that he went to the station at Winchester, and there mailed the letter to the Hust Home Insurance Company. Between one and two o'clock the next morning, March 12, 1921, this property was destroyed by fire.
Defendants denied liability under their contracts for three reasons:
One. Because each contract contains a provision that the policy should be void if other insurance was procured upon the property without the consent of the company.
Two. Because the property was intentionally destroyed by the plaintiff.
Three. Because the insurance was procured by a misrepresentation of material facts.
Replies to these answers made up the issues. These issues were submitted to the jury under instructions of which the plaintiff is complaining, but which we have examined and find to be more favorable to him than necessary.
He insists that the court erred in adjudging that the burden of proof was on the defendants; but he had sued upon written contracts made by the defendants, the execution of which they admitted, and if no evidence had been introduced he would have succeeded. Therefore, the court did not err in adjudging the burden to be on the defendants.
His next complaint is that the court erred in permitting counsel for defendants to read to the jury a reply filed by plaintiff in another action, but inasmuch as this error was not saved by setting it out in the bill of exceptions, we can not consider it. We have often announced this rule, and in the case of Hopkins v. Commonwealth, 210 Ky. 378, 275 S.W. 881, we stated the reason for the rule.
Plaintiff complains of the evidence, but as he has not in his brief discussed that, or sought to point out the objectionable evidence, that will be treated as waived. See McCorkle v. Chapman, 181 Ky. 607, 205 S.W. 682.
His last complaint is that the verdict is not supported by the evidence. Of course, the witnesses did not entirely agree. They rarely do. There was some evidence favorable to each party. The jury saw and heard the witnesses, and had better opportunity to judge of their interest than we have. There have been two trials of this case. The first jury failed to agree, which would indicate that there was conflict in the evidence, and that the evidence was not all one way. The second jury, however, did agree. We can se no reason for disturbing the verdict.
The judgment is affirmed.