Burlington Ins. Co. v. Gibbons

• Decision Date: 11 January 1890
• Citation: 43 Kan. 15,22 P. 1010
• Parties: THE BURLINGTON INSURANCE COMPANY, OF BURLINGTON, IOWA, v. ELLEN GIBBONS
• Court: Kansas Supreme Court

22 P. 1010

43 Kan. 15

THE BURLINGTON INSURANCE COMPANY, OF BURLINGTON, IOWA, v. ELLEN GIBBONS

Supreme Court of Kansas

January 11, 1890

Error from Miami District Court.

ACTION to recover on a fire insurance policy. Judgment for the plaintiff Gibbons, on December 13, 1887. The defendant Company brings the case here. The material facts are stated in the opinion.

Judgment reversed and cause remanded.

Carroll & Sheldon, for plaintiff in error.

Brayman & Stevens, for defendant in error.

VALENTINE J. All the Justices concurring.

OPINION

VALENTINE, J.:

This was an action on a fire insurance policy brought in the district court of Miami county on March 7, 1887, by Ellen Gibbons, against the Burlington Insurance Company, of Burlington, Iowa, to recover $ 150 and interest from November 27, 1886, for an alleged loss of that amount occurring by fire at that date. The case was tried before the court without a jury, and judgment was rendered in favor of the plaintiff and against the defendant on December 13, 1887, for $ 150 principal, and $ 10.97 interest, total $ 160.97; and to procure a reversal of this judgment the defendant, as plaintiff in error, brings the case to this court.

The facts of the case are substantially as follows: On December 1, 1885, the Burlington Insurance Company insured for five years and to the amount of $ 150, a house belonging to Sarah A. Bixby, in the city of Paola, in said county. The policy contained among others the following provisions:

"If there be any false representation, false swearing or fraud by the assured, either before or after a loss, or if there be any other insurance, now or hereafter, whether valid or not, on the property hereby insured, or any part thereof, or if the above-mentioned premises shall be occupied or used so as to increase the risk, or be or become vacant, unoccupied or uninhabited, or the risk be increased by the erection of adjacent buildings, or by any other means whatever, or if the property be sold or transferred or incumbered in whole or in part by mortgage, judgment or liens, or if this policy shall be assigned, either before or after a loss, or if the premium note or notes or any part or installment thereof shall be over-due and unpaid, then unless the consent of the secretary is indorsed thereon in each and every one of the above cases this policy is void."

On August 4, 1886, Mrs. Bixby sold the aforesaid property and assigned the aforesaid policy to Minnie E. Shigley, and on the next day the insurance company, by its president, consented to the same. Afterward Minnie E. Shigley was married and became Minnie E. Stanley, and afterward her mother, Mrs. Ellen Gibbons, attended to her property and insurance for her. On November 18, 1886, the property became vacant; and with reference to this vacancy the principal question in this case arises, and we shall have more hereafter to say with respect thereto. On November 27, 1886, the property was totally destroyed by fire. On February 4, 1887, Mrs. Stanley sold and transferred all her interest in the foregoing policy and her claim thereon against the insurance company to her mother, Mrs. Gibbons. The insurance company refusing to pay the loss, or any portion thereof, Mrs. Gibbons, on March 7, 1887, commenced this action against the insurance company as aforesaid. The defendant, (plaintiff in error,) as shown by the brief of its counsel, contends as follows:

"The insurance company contends that at the time of the alleged loss, November 27, 1886, said policy of insurance, by the terms thereof, and by the acts of the holders thereof, had become null and void, and was then of no binding force or effect; and that the insurance company was not then and is not liable thereon in any sum whatever, for the reason that at the time of the alleged loss the dwelling-house covered by said policy of insurance was then, with the knowledge and consent of the then holder of said policy No. 186,102, and without the knowledge or consent of said insurance company, 'wholly vacant and unoccupied,' and had been so vacant and unoccupied for a number of days prior to November 27, 1886, contrary to and in violation of the terms of said policy and contract of insurance. And further, that if there was any liability on the part of the insurance company, which it explicitly denies, that the damage to said dwelling-house was not $ 150, but was less than $ 100."

The plaintiff admits that at the time of the fire the property was vacant, unoccupied, and uninhabited, and also admits that the consent of the secretary of the company had not been indorsed upon the policy, nor even given; but it is contended by the plaintiff that the consent of the company to such vacancy had nevertheless been given, and that it was given by J. W. Morehead, the agent of the company who procured the policy, and who presumptively had full authority from the company to give such consent. The insurance company admits that Morehead was its agent, but claims that he was only a "soliciting agent to transact business for said company, having or keeping an office or principal place of business at Paola, in the county of Miami," as provided in a certain appointment on file in the office of the department of insurance, at Topeka, Kansas; and that he had no other or further authority, and no authority to consent to a vacancy of the property insured or to waive any of the terms or conditions of the insurance policy.

It appears that the defendant was an insurance company of Burlington, Iowa, that J. W. Morehead was its agent at Paola Kansas, and that the insurance in this case was effected through Morehead's agency. The building insured was to be occupied, as the policy shows, by "owner or tenant." Under the evidence and findings of the court below it must be taken as a fact, although the evidence upon the subject was conflicting, that Morehead gave his oral consent about two weeks prior to the fire, that the property might be and remain vacant for a period of thirty days, or until a tenant could be procured, not exceeding that time. Morehead testified that he never gave any such consent, and Mrs. Gibbons testified that he did. The house had been in fact vacant only nine days when the fire occurred which destroyed it. Morehead's agency, as the evidence shows, was limited as the defendant contends, but it does not appear that Mrs. Bixby or Mrs. Stanley or Mrs. Gibbons ever had any knowledge or notice of any such limitations further than the policy itself may show. In fact we think they had a right to believe that the agency of Morehead was as comprehensive and extensive as his acts in procuring the insurance would indicate, except as the policy...