Dyson v. The United Warehouse Company, 27,356

• Court: United States State Supreme Court of Kansas
• Writing for the Court: BURCH, J.:
• Citation: 123 Kan. 515,255 P. 1115
• Parties: C. C. SMITH and F. A. DYSON, Copartners, as THE SMITH-DYSON MOTOR COMPANY, Appellees, v. THE UNITED WAREHOUSE COMPANY, Appellant
• Docket Number: 27,356
• Decision Date: 07 May 1927

255 P. 1115

123 Kan. 515

C. C. SMITH and F. A. DYSON, Copartners, as THE SMITH-DYSON MOTOR COMPANY, Appellees,
v.
THE UNITED WAREHOUSE COMPANY, Appellant

No. 27,356

Supreme Court of Kansas

May 7, 1927

Decided January, 1927.

Appeal from Sedgwick district court, division No. 2; THORNTON W. SARGENT, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. THEFT INSURANCE -- Subrogation as Against Warehouseman -- Parties. An automobile was stolen from a warehouse in which is was stored, and when returned to the owner was greatly depreciated in value. The owner was insured against theft, and the insurance company discharged its liability to the owner by payment of a sum less than the total amount of damages the owner had sustained. Held, an action against the warehouseman for the benefit of the insurance company was properly brought in the name of the insured.

2. SAME--Subrogation -- Pleading -- Evidence -- Special Findings. Assignments of error by defendant relating to pleading, evidence, special findings, and verdict, considered, and held to be without merit.

3. WAREHOUSEMAN -- Liability for Theft -- Action for Benefit of Insurer -- Amount Recoverable. The proceedings considered, and held, the court is unable to declare that an instruction to the jury, limiting amount of recovery by plaintiffs to the amount of the insurance money, was erroneous.

C. A. Matson and I. H. Stearns, both of Wichita, for the appellant.

L. A. Hasty, Robert R. Hasty and George E. Hasty, all of Wichita, for the appellees.

OPINION

BURCH, J.:

The action was one for damages against a warehouseman for injury to a stored automobile which was stolen from the warehouse and afterwards recovered. Plaintiffs prevailed, and defendant appeals.

When stored the automobile was worth $ 2,725, and when recovered by the owners it was worth $ 1,000. The owners carried theft insurance, and the insurance company paid them $ 1,060. The owners sued the warehouse company for the difference between the value of the automobile when stored and when returned, plus expenses incurred in recovering it. The proved damages were $ 1,826.30. One of the plaintiffs, F. A. Dyson, who personally conducted the business of storing the automobile and of settling with the insurance [123 Kan. 516] company, testified as if he were the firm. He said he assented to the bringing of suit in his name, but did not employ the attorneys, and had no interest in the outcome of the...