Kansas Farmers' Fire Ins. Co. v. Saindon

• Decision Date: 09 December 1893
• Citation: 52 Kan. 486,35 P. 15
• Parties: THE KANSAS FARMERS' FIRE INSURANCE COMPANY v. BEN. SAINDON
• Court: Kansas Supreme Court

35 P. 15

52 Kan. 486

THE KANSAS FARMERS' FIRE INSURANCE COMPANY v. BEN. SAINDON

Supreme Court of Kansas

December 9, 1893

Error from Cloud District Court.

THIS action was commenced by Ben. Saindon against the Kansas Farmers' Fire Insurance Company, upon an insurance policy dated the 1st day of April, 1887, for damage sustained by reason of a fire which occurred November 6, 1888, and during the term of the policy. Among other things contained in the petition was the following:

"And plaintiff further says, that said defendant, at the time it issued said policy of insurance to the plaintiff, did not properly describe the real estate on which said dwelling house was situated, and that the answers to certain questions in the application and transcribed on said policy are not the answers of the plaintiff to the questions as they appeared on said policy of insurance; that when he received said policy and discovered said errors, he returned the same to said insurance company for correction, and asked to have said erroneous description corrected so as to properly describe the real estate on which said dwelling house was situate, and to correct the other erroneous answers to questions, as they appeared on said policy to have been falsified; all of which said company, by their authorized agent, agreed to do, and received from said plaintiff his said policy herein described for that purpose, who kept and did not return the said policy to him until after his said loss by fire, when the same was returned to him without any correction having been made; that said error in said description and answers was not the plaintiff's, but the defendant's, and which error it the defendant, should have corrected, as was its place to do when notified and directed."

The answer contained a general denial. The second defense was that at the time of the fire the plaintiff below was not the owner of the property destroyed by the fire or the property described in the policy. In the fourth defense, the defendant set out the written application made by Saindon for the policy, alleging specifically that the application, by the terms of the policy of insurance, was a warranty on the part of Saindon, and that the policy contained conditions providing that any false representations upon the part of the assured in his application should render his policy of insurance void, and that the application contained false statements; among others, that the assured represented that he was the owner of the premises upon which the property was situated and that it was unincumbered, when, in fact, the property was mortgaged for a very large amount -- about $ 14,000. In the fifth defense, the company pleaded the clause in the policy that, if the property described in the policy of insurance should be sold, transferred or incumbered in whole or in part before or after the loss, without the consent of the secretary of the defendant company indorsed thereon, then the policy of insurance should be void; and alleged that plaintiff below, at divers times after receiving the policy, had mortgaged the insured property, and that for this reason the policy was wholly void. The reply was as follows:

"Comes now the plaintiff, and for reply to the several paragraphs of defendant's answer herein, denies each and every allegation therein contained. And, for a further and more complete reply herein to defendant's answer, says that he never executed or delivered the pretended application for insurance set forth in defendant's answer and marked 'Exhibit A'; that he never either directly or indirectly made any representations to defendant that his real estate mentioned was or was not mortgaged or incumbered neither did he ever authorize the same to be made to defendant, or to anyone acting for and in behalf of said defendant; that E. D. Pelletier, the solicitor for said insurance company, defendant, desiring to insure the house and furniture of the plaintiff, represented to the plaintiff that he was the agent of the insurance company, defendant and that all the company desired was the size of the house and when built; that E. D. Pelletier, for said defendant took a blank piece of paper and took down the size of the house and when built, turned to the plaintiff and said 'That is all. When you come in again your policy will be ready;' that the plaintiff soon thereafter called, paid the full premium thereon, to wit, $ 37.50, and, being unable to read or write, took the policy home; that he never signed any application of any kind or description to said defendant, neither did he ever authorize anyone in his behalf to sign such application; that his application for the insurance was oral, and was not reduced to writing by the defendant; that in obtaining the insurance policy, he did not conceal or attempt to conceal any debt or lien against him; that E. D. Pelletier, who was acting for and on behalf of the insurance company, defendant, and from whose hand he received the policy, had personal knowledge of the financial condition of the plaintiff at the time of the issuing and delivering of the insurance policy, and for a long time prior thereto."

The reply was not sworn to. The trial commenced on the 10th of January, 1890. The jury returned a verdict for the plaintiff, and assessed his damages at $ 2,664.16, being $ 1,900 for loss on house, with interest of $ 124.76, and $ 600 for loss on personal property, with $ 39.40 interest. Subsequently judgment was rendered thereon in favor of the plaintiff and against the defendant upon the verdict. The Insurance Company excepted, and brings the case here.

Judgment affirmed.

Stambaugh & Hurd, for plaintiff in error:

The petition itself disclosed the fact that the policy did not properly describe the real estate upon which said dwelling house was situated; that the answers to certain questions in the application and transcribed on said policy were not the answers of the assured to the questions as they appear upon said policy of insurance; that the property was in fact located upon the northwest quarter of section 3, township 6 south, of range 4 west; that the description in the policy is the northeast quarter of section 3, township 6 south, of range 4 west, and the plaintiff declared upon the policy and the application as the written contract upon which he was entitled to recover; that before recovery could be had the contract itself must be re-formed.

There was other insurance, and for this reason the policy, it is well settled, was void. Under the terms of the policy sued on in this case, it is provided that if the property described in the policy of insurance be sold, transferred, or incumbered, in whole or in part, before or after the loss, without the consent of the secretary of said defendant company indorsed thereon, then said policy of insurance shall become void. The property described in the petition was mortgaged during the term of the policy and before loss. No notice was given to the company of the making of these mortgages, and no consent asked or obtained. The making of these mortgages during the term of this policy was in violation of the terms of the policy quoted, and unquestionably rendered the policy void. See 1 Allen, 362; 41 Pa. 187; 48 id. 151; 40 Md. 620; 36 Wis. 599.

Pelletier was not the agent of the company for any purpose. He had been the agent of the company, but his agency had terminated, and it does not appear that Saindon ever knew that Pelletier was or had ever been the agent of the defendant company. He was an old acquaintance and a fellow-countryman with whom he could talk, upon whose solicitation he gave an order for his insurance without, according to his own testimony, inquiring or knowing what company his insurance was to be in. Pelletier was the agent of Saindon.

The fact that Saindon returned this policy to Pelletier after he discovered the mistake in the description of the property, for correction, never came to the knowledge of the defendant company. Pelletier never sent it to the company for correction, or in any manner apprised the company of the misdescription, or of the falsity of the answers which he had inserted in the application; nor can it be pretended that the company is chargeable with what came to Pelletier's knowledge with respect to this last matter.

Pulsifer & Alexander, for defendant in error:

The land upon which the dwelling house was described in the policy as situated, was a misdescription. But it seems to be well settled that a misdescription of this character does not vitiate the policy nor prevent a recovery thereunder, nor is it necessary to have the policy re-formed in order to recover thereunder. Insurance Co. v. Schreck, 43 N.W. 341-344; Insurance Co. v. Gebhart, 49 id. 333; Mumper v. Kelley, 43 Kan. 256; Insurance Co. v. McLanathan, 11 id. 533; Life Ins. Co. v. Lunkenheimer, 26 N.E. 1082-1084.

An insurance agent or solicitor, who is authorized to receive applications and forward them to the company, is the agent of the company; and if he receives truthful information from the assured, and undertakes to correctly fill up the application but instead of doing so makes false statements, the assured will not be made to suffer from his wrongful act. Continental Ins. Co. v. Pearce, 39 Kan. 396-402; Bowlus v. Pheenix Ins. Co., 32 N.E. 319-323; Kister v. Insurance Co., 18 A. 447-450; Insurance Co. v. Eshelman, 30 Ohio St. 647-656; Russell v. Insurance Co., 45 N.W. 356, 357; Insurance Co. v. Jordon, 45 id. 792, 793; Rodgers v. Insurance Co., 23 N.E. 498; O'Brien v. Benefit Society, 22 id. 954; Baker v. Insurance Co., 38 N.W. 216; Spratt v. Insurance Association, 13 S.W. 799, 800; Insurance Co. v. Taylor, 24 P. 333, 334; Reynolds v. Insurance Co., 46 N.W. 659; Abraham v. Insurance Co.,...