Kenton Ins. v. Wigginton

JUDGE PEYOE delivered the opinion oe the court. This case comes from the Superior Court by an appeal. The appellant, the Kenton Insurance Company, made :a contract of insurance with the appellee, Wigginton, by which the company insured his dwelling-house against loss or damage by fire for the period of three years from the second day of November, 1886. The policy of insurance contains the usual stipulations with regard to notice and the preliminary proof as to the loss, as well as the representations by the insured that he was the owner in fee of the property. The dwelling insured having been destroyed by fire, the appellant refused to pay the loss for the following reasons: (1) It contends that no preliminary proof of the loss was made and presented to the company as the contract of insurance required, and that being a condition precedent on the part of the insured, the — 334 — recovery should have been denied; (2) the insured owned only an interest of one-fourth in the property when he represented that he was the sole owner in fee; (3) the title to the property was in litigation in the Carroll Circuit Court when the insurance was effected by the appellee, and the contract of insurance making the policy void if that fact is not disclosed, no recovery should be had. The policy provides that no action shall be maintained until the proofs of loss aré furnished as required by the contract, and the application must disclose the true character of the title, and if incumbered or involved in litigation, such facts must be disclosed by the insured. An examination of this record has satisfied us that no valid defense has been made out, and the absence of the preliminary proofs essential to the demand of payment, from the company was caused by the conduct of the company or its agents, and for which the appellee is in nowise responsible. As soon as the fire occurred and the appellee’s property destroyed, he notified the local agent of the company, and asked him for the usual blank forms kept and furnished by such companies to the insured as a guide in proving the loss sustained, and, in response, was told that the agent had no blank forms, but would write or see the principal agent or the home office on the subject. The principal office having been notified of the destruction of the property, and the appellee becoming restless at the delay in delivering to him the formula for making his preliminary proof, the local agent went to Covington, the place of the principal office, — 335 — and was there told, in effect, that some one would be sent down to see about the matter or to settle it, all of which was communicated to Wigginton, who relied on the statements of the local agent, that are not denied by the company, but admitted to be true. The home office knew that the written forms had been applied for by Wigginton (the appellee) at the office of the agent at Carrollton; had been written to by this agent to send the forms, and instead of doing so, or delivering them to the local agent who had gone to the home office to inquire about the delay, said to the agent, we will send some one down to see about it, and this some one did come, but never saw the appellee or approached him on the subject, nor did he give to the latter the opportunity of seeing him, but left the town of Carrollton, as if the matter was of no importance to the appellee or the company. The appellee began to comply with his contract the morning after the fire, and attempted to do every thing that was necessary to notify the company of his loss; but delay after delay, resulting more from the action of the company than that of the appellee, prevented the proofs from being made within the thirty days; and that the appellee was lulled into security by the conduct of the company or its agents is too plain a proposition to be controverted. There was not the shadow of a suspicion that the dwelling was burned for the purpose of obtaining the insurance, and the appellee — no doubt, a- plain unsuspecting farmer, confiding in the statements of the local agent, and with the full belief that this company was preparing to adjust the loss — took no steps to present — 336 — the proof, except in the manner stated, and is now met with the defense that the company was delaying, payment for the want of the proof of loss, and the still further defense that no payment would have been made if the proof had been furnished, because the appellee was not the owner in fee of the property insured. The general doctrine in regard to such conduct on the part of insurance companies can be well applied in this case: ‘‘The preliminary proof of loss will be excused on the ground of waiver by the insurers, if their conduct is such as to induce delay, or to render its production useless or unavailing, or as to induce in the mind of the insured a belief that no proofs will be required.” (May on Insurance, 468.) It appears from the application made by the appellee that the building insured stood on' a tract of land containing two hundred and twenty-four acres, and in the answer propounded to a question as to the title, he stated that he Avas the fee-simple owner, or rather the unconditional owner, of the entire tract. "Whether any difference exists in a case like this in the meaning of the words uthe owner in fee” and ‘ ‘ the unconditional owner 5 ’ is not necessary to determine, and in considering the question of title, the case Avill be disposed of as if the appellee had represented to the agent that he was the owner in fee of the entire tract -of land. He, in fact, owned but one-fourth of the whole tract in fee, with a life estate in remainder, but was then claiming a fee in the whole, the sole question being involved in a litigation then pending as to the extent of his interest in the remainder, he claiming a fee, and the children of his Avife, by her — 337 — first husband, insisting that he had a life estate only. 'The agent, or rather G-ullion, who was a sub-agent of the local agent, with whom the appellee made the contract, was fully cognizant of all the facts. It is ¡said, however, that this sub-agent was not employed hy the company, but by the local agent, -without any -authority from the company to appoint him, or to conduct its business in that mode. These are doubtless the facts of the record, but the appellee, nevertheless, had not imposed on the company by perpetrating an actual fraud, but made his representations to one whom he believed was the .agent, and who knew the condition of the title. So neither Davis nor the agent of Davis was imposed on by the appellee; but the company, ignoring the ¡authority of Gullion, the case must be determined on the materiality of the representation made as to the title, and its effect on the company. So we find the ¡appellee the owner of one-fourth of the entire land in fee and a life estate in the balance, living on the land .and in a building erected out of his own means, and necessary, and we might say indispensable, as a habitation for himself and family. He is a tenant in common of the whole tract, and the dwelling insured built ¡at his own expense (or remodeled an old one that was valueless), that cost him two thousand dollars. It is not pretended that the land can not be divided so as to include the improvement made by the appellee, and .allot to him that portion of the land where he has lived since the year 1864. He was the owner in fee of the one-fourth interest, and in good faith believed 'that he held the fee to the whole tract, but this court — 338 — held otherwise in the case of Peak’s Heirs v. Wigginton, decided at the last term. It is manifest that in a division of this land the building would have been assigned to the appellee without estimating its value. The old building was worthless, and the entire expense incurred by the appellee in remodeling it, and. the fact that his title is not purely legal, is no argument against this recovery. There was no incumbrance on this one-fourth interest, or litigation in regard to it, and the tenant in common having the right to improve the land, and to erect such buildings as would enable him to live on it, if the other tenants get their part, of the land in its unimproved state, without regard to the improvements made by their co-tenant, no one will be heard to complain. The improvements in such a case, as was held in Nelson’s Heirs v. Clay’s Heirs, 7 J. J. Mar., 140, “will be assigned in the partition to the tenant making them.” It certainly would constitute no defense on the part of the appellant if, instead of a conveyance of record, the appellee had only a bond for title with all the purchase money paid. The representation as to the title to the entire tract was not fraudulent, but made in the best of faith; nor was it material to the risk, because the appellee was entitled to his one-fourth interest in fee, including the-dwelling insured. The appellee was the unconditional owner of this dwelling and the ground upon which it stood, free of any incumbrance, and the fact that he did not own the entire tract, although he may have so stated, could in no manner have affected the rights of the insurance company or misled its agent when taking the risk, and no court, it seems to us, should — 339 — hold that the fee was not in the appellee for the reason that partition had not been made. It is further claimed that the dwelling was not of the value placed upon it by the insured. The testimony on his part shows that the building cost him two thousand dollars, and the valuation at best is a mere matter of opinion, as is evidenced by the conflicting statements of witnesses in this case, and, therefore, unless there is proof showing that the insured has purposely fixed a large estimate upon his property with a view of obtaining that to which he is not entitled, the mere expression of an opinion as to value in the absence of bad faith can not be held to be either deceptive or fraudulent. Under the statute of February 4, 1874, neither repre ■ sentations nor warranties affect the right of recovery, unless material to the risk or fraudulent, and where the ‘property belongs to the insured, or if a joint owner, and, between him and his co-tenants, he is entitled to the property insured, the mere fact that there has been no partition, or a partition without a conveyance, if otherwise free of incumbrance or lien, will constitute no defense by the company. The best of faith has been shown in this entire transaction on the part of the appellee towards the appellant, and there is no reason upon any principle of law, equity or justice for releasing the appellant from its liability. Judgment affirmed.