Capitol Ins. Co. v. Bank of Pleasanton
| Decision Date | 07 January 1893 |
| Citation | 31 P. 1069,50 Kan. 449 |
| Parties | THE CAPITOL INSURANCE COMPANY v. THE BANK OF PLEASANTON |
| Court | Kansas Supreme Court |
Motion for Rehearing.
THE facts are stated in Insurance Co. v. Bank of Pleasanton, 48 Kan. 397, et seq., and in the opinion herein, filed January 7, 1893.
Motion for rehearing denied.
D. R Hite, for plaintiff in error.
S. H Allen, for defendant in error.
In the opinion handed down, (Insurance Co. v. Bank of Pleasanton, 48 Kan. 397,) the by-laws attached to the insurance policy were not considered a part thereof, and the case was disposed of without any reference thereto. It is now urged that the validity of the by-laws and policy were never questioned in the district court; and also that, as the insurance company is a mutual one, the assured was bound to know and abide by the by-laws, whether attached to the policy or not. Assuming that the by-laws were binding on the assured, we will notice the objections presented in the original briefs to the judgment. It appears that the policy was issued on June 14, 1888. The building was destroyed by fire on the 2d day of November, 1888. The fire originated some distance west of the building insured, and spread over a large district, destroying the greater part of the business portion of Blue Mound. On November 12, 1888, D. R. Hite, the general agent of the company, appeared, and examined J. D Cozad with reference to the loss under the policy. On the 4th of December, 1888, proofs of loss were made by Mr. Saunders cashier of the bank, and sent to the company. On December 8, 1888, Hite wrote, acknowledging the receipt of the proofs, but denying all liability. As the proofs of loss were made out and sent to the company soon after the fire, and as these proofs were not excepted to or returned, we must assume that the notice given and proofs furnished were satisfactory and sufficient. The original opinion states fully all that is necessary to be said concerning the admission in evidence of the letter of D. R. Hite. A provision in the by-laws is as follows:
"This policy shall be void . . . when the interest of the assured in the subject and each item thereof shall be less than the entire, unconditional, undisputed, sole legal title and ownership, free from liens, unless in the application the exact and true interest shall appear."
The evidence showed that at the time the policy was issued Cozad, Glucklich & Co. occupied the building. Harry Worland had the legal title to the premises on which the building was situated on the 2d of February, 1886, and on that date executed to this firm a bond for a deed when certain sums of money, amounting to $ 3,000, were paid. On the 9th of July, 1887, H. C. Worland and wife executed a deed to the premises to the Bank of Pleasanton, and at the date of the policy the bank held the legal title thereto. Cozad, Glucklich & Co. had, under their bond and an arrangement with the bank, an equity in the premises. The policy was issued and countersigned by W. A. Eahart, the agent of the company, residing at Blue Mound, on the verbal application of J. D. Cozad, of the firm of Cozad, Glucklich & Co., by whom the premium of $ 16 was paid in cash. One thousand dollars had been paid at the time of the fire upon the bond by Cozad, Glucklich & Co., leaving a balance of $ 2,000 not yet due. It is therefore urged that, under the by-laws and within the terms of the policy, the plaintiff below was not entitled to recover, because its interest was less than the entire, unconditional, undisputed, sole legal title and ownership of the premises, free from liens.
The plaintiff below, upon the trial, claimed that knowledge of the agent Eahart, who wrote the policy, was knowledge of the insurance company, and that, as knowledge by the agent was shown, the company was estopped. (Sullivan v. Phoenix Ins. Co., 34 Kan. 170, 8 P. 112; Continental Ins. Co. v. Pearce, 39 id. 396; Insurance Co. v. Barnes, 41 id. 161; Insurance Co. v. Gray, 43 id. 502; Insurance Co. v. Gray, 44 id. 731; Phoenix Insurance Co. v. Weeks, 45 id. 751.)
On the part of the company, it is contended there was a failure of proof that, at the time of the...
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