Bankers Inv. Co. v. Central States Fire Ins. Co.

• Decision Date: 10 April 1948
• Docket Number: 37082.
• Citation: 192 P.2d 214,164 Kan. 682
• Parties: BANKERS INV. CO. v. CENTRAL STATES FIRE INS. CO. et al.
• Court: Kansas Supreme Court

192 P.2d 214

164 Kan. 682

BANKERS INV. CO. v. CENTRAL STATES FIRE INS. CO. et al.

No. 37082.

Supreme Court of Kansas

April 10, 1948

Appeal from District Court, Reno County; F. B. Hettinger, Judge.

Action by Bankers Investment Company, a corporation, against Central States Fire Insurance Company, of Wichita, Kansas, a corporation, and Tom Holden, to recover a money judgment for the alleged invasion of plaintiff's rights in personalty. From a judgment overruling the demurrer of the Central States Fire Insurance Company to the petition, it appeals.

Judgment reversed.

Syllabus by the Court.

1. Under G.S.1935, 60-601, a cause of action on a note cannot be joined with a cause of action for an alleged invasion of rights in personal property where the two cause of action are based upon entirely different elements and the party charged with the invasion of property rights is in no manner affected by the disposition of the cause of action on the note.

2. In an action to recover a money judgment for an alleged invasion of rights in personal property the record is examined, and it is held, the amended petition fails to state a cause of action.

Daniel M. Moyer, of Wichita (Charles G. Yankey, Harvey C. Osborne John G. Sears, Jr., and Dwight S. Wallace, all of Wichita, on the brief), for appellant.

Abraham Weinlood, of Hutchinson (Don Shaffer, of Hutchinson, on the brief), for appellee.

PARKER Justice.

This is an action in which the plaintiff seeks to recover a money judgment for an alleged invasion of its rights in personal property.

Shortly after the institution of the action the defendant, Central States Fire Insurance Company, challenged the petition by a motion wherein it requested the plaintiff should be required to make its petition more definite and certain in the following particulars:

'1. Plaintiff should be required to attach to its petition copy of the insurance policy referred to in Paragraph 1 of plaintiff's petition, or in lieu thereof to set out in said petition all of the contract provisions that plaintiff relies on to create liability to it from this defendant.

'2. Plaintiff should allege whether this defendant violated any contractual or other duty owed to it by this defendant in ordering the repairs or in ordering said airplane flown or transported to the City of Wichita as set forth in Paragraph 7 of plaintiff's petition, and if plaintiff claims that this defendant violated or exceeded the rights afforded it under the terms of the insurance policy referred to in plaintiff's petition, plaintiff should allege the provisions of said policy so breached.

'3. Plaintiff should be required to set out in its petition the exact nature of the charges made by R. C. Allmon & Company, which charges are referred to in Paragraphs 7, 9 and 11 of plaintiff's petition, and plaintiff should allege whether or not any action has been taken by R. C. Allmon & Company to foreclose the lien which plaintiff alleges in its petition that R. C. Allmon & Company asserted against said airplane, and if any action has been filed by said R. C. Allmon & Company to foreclose the same or to establish his lien, plaintiff should be required to attach a copy of the petition filed in said action to the petition filed in this action.

'4. Plaintiff should allege whether or not the action taken by this defendant in authorizing or ordering the airplane repaired and in ordering said airplane transported or flown to the City of Wichita was by direction, authorization, approval or order of the defendant Tom Holden, the owner of said airplane.

'5. Plaintiff should be required to separately state the cause of action as against this defendant as from the cause of action against Tom Holden and the plaintiff should be required to itemize the amount of damages claimed as against this defendant, Central States Fire Insurance Company.'

Thereupon the trial court sustained ground 5 and overruled all other grounds of such motion. We make no further reference to the petition for the reason its allegations are the same as those appearing in the amended petition, hereinafter quoted, with the exception that causes of action are separately stated in the latter pleading.

Such amended petition, omitting its formal averments, reads:

'First Cause of Action

'4. On February 9, 1946, defendant Tom Holden executed in favor of plaintiff a 'Combined Note and Chattel Mortgage', a copy of which is attached hereto marked 'Exhibit A', and made a part hereof by reference, by which said defendant Tom Holden promised to pay to plaintiff the sum of $10,132.56 in twelve monthly instalments of $844.38 each, commencing on March 9, 1946, and by which to secure the payment of such note, said defendant Tom Holden mortgaged to plaintiff one used 1943 Cessna airplane, Model T-50, manufacturer's serial number 5130, license number NC 54816, motor names, types and numbers Jacobs L-4MB, J O-23540 and Jacobs L-4MB, J O-23534. Said 'Combined Note and Chattel Mortgage' was properly recorded with the Civil Aeronautics Administration of the Department of Commerce of the United States on May 24, 1946, as Document No. 196094.

'5. On or about June 28, 1946, defendant Central States Fire Insurance Company contracted with defendant Tom Holden and with plaintiff for the issuance of an insurance policy covering the above described aircraft, and the policy of insurance with all endorsements and riders was issued in final form on or about July 24, 1946, for the period to June 28, 1947, and covering loss or damage to said aircraft. Said policy was made payable to defendant Tom Holden and to plaintiff as their respective interests may appear, and defendant Tom Holden was designated as the owner under a chattel mortgage, plaintiff being designated as mortgagee.

'6. Defendant Central States Fire Insurance Company, its officers, agents, servants, and representatives knew at all times during the term of said policy and to the present that said aircraft was encumbered by the mortgage referred to above, and that plaintiff was the mortgagee, and had an interest in the aircraft and any insurance which might be payable under the terms of the aforesaid insurance policy, and any action which might be taken with respect to the aircraft.

'7. On or about July 23, 1946, the aircraft referred to above sustained damage at Casper, Wyoming, within the meaning and coverage of said insurance policy. Defendant Central States Fire Insurance Company was notified of said loss, pursuant to the terms of the policy on July 24, 1946. Thereafter, said defendant Central States Fire Insurance Company, through its agent and representative The Fire Company's Adjustment Bureau, inspected the plane, ordered and paid for an appraisal of the damage and probable cost of repair, and then contracted with R. C. Allmon and Company, of Wichita, Kansas to go to Casper, Wyoming, place the plane in condition to fly to Wichita, Kansas, and bring it to Wichita, with express orders to do nothing toward final repair of said plane until written authority was granted. Said R. C. Allmon and Company performed the terms of this contract and brought the plane to Wichita, Kansas, and entered a charge of $2600.00 for such services. All of said action of defendant Central States Fire Insurance Company and its representatives was without notice to plaintiff until plaintiff subsequently learned of it, as hereinafter set forth.

'8. On or about October 24, 1946, plaintiff was advised that an adjustment had been made under the terms of the aforesaid insurance policy, and a check was sent to plaintiff in the amount of $1,644.50, in accordance therewith, by the authorized representatives of defendant Central States Fire Insurance Company. A copy of said check is attached hereto and marked 'Exhibit C' and made a part hereof by reference.

'9. On or about October 28, 1946, plaintiff sent a representative to Wichita, Kansas, accompanying defendant Tom Holden, for the purpose of taking possession of the aircraft herein involved and having it repaired. Upon making request for possession, plaintiff's representative was advised that R. C. Allmon Company had not been paid its bill of $2600.00 for the services described in paragraph No. 7 above, and that a lien for that amount was claimed and possession would be retained by R. C. Allmon Company until said bill was paid and possession was refused plaintiff and defendant Tom Holden.

'10. Said R. C. Allmon and Company has not been paid to the time of filing of this Petition, so far as is known to plaintiff, and said R. C. Allmon and Company has continued until this time to assert a lien on said aircraft and to retain possession thereof.

'11. Upon being advised as set out in paragraph 9 above, plaintiff refused to endorse the check referred to in paragraph 8 above, but made demand on defendant Central States Fire Insurance Company through its authorized representatives to pay the amount which R. C. Allmon Company claimed a lien, and make possible the release of said aircraft. Thereupon plaintiff was advised by the representatives of defendant Insurance Company that payment had been stopped on the check above referred to, pending a further adjustment of the matter. Defendant Central States Fire Insurance Company has to this...