Lawson v. Southern Fire Ins. Co.

• Decision Date: 06 May 1933
• Docket Number: 31101.
• Citation: 137 Kan. 591,21 P.2d 387
• Parties: LAWSON et al. v. SOUTHERN FIRE INS. CO. SAME v. MERCANTILE FIRE INS. CO.
• Court: Kansas Supreme Court

21 P.2d 387

137 Kan. 591

LAWSON et al. v. SOUTHERN FIRE INS. CO.

SAME v. MERCANTILE FIRE INS. CO.

No. 31101.

Supreme Court of Kansas

May 6, 1933

Syllabus by the Court.

Deposition of litigant may be taken and read in evidence same as that of any other witness (Rev. St. 1923, 60--2819 et seq.).

Where plaintiff followed dangerous vocation of aviator which took him outside state, plaintiff's deposition held properly taken and received in evidence (Rev. St. 1923, 60--2819 et seq.).

Where insurer's agent was to retain fire policies until insured paid note accepted for unpaid balance of premiums, that policies never came into insured's manual possession held not to defeat his cause of action.

Insured purchasing property on executory contract held "unconditional and sole owner" within terms of fire policies.

That insured's airplane hangar was located on leased ground held not to avoid fire policies, where insurers were apprised of such fact at time policies were issued.

In absence of special contract, airplane hangar erected on leased premises is trade fixture which belongs to lessee and not lessor; hence provisions of fire policies dealing with situation where insured does not have fee simple to realty were inapplicable to insurance covering hangar.

Insured's failure to submit formal proofs of loss held not to defeat insurers' obligations under circumstances.

Circumstances disclosed that insured promptly advised insurers' agent who had possession of policies of fire, and agent promised to notify insurers, and insurers' state representative informed insured that matter would be turned over to adjusting company.

Where fire insurers defended on ground of insured's failure to furnish proofs of loss, permitting insured to testify regarding conversation with insurers' agent regarding proofs of loss following fire held not error.

In action on fire policies, permitting insured to testify as to value of destroyed airplane hangar held not error.

In action on fire policies, excluding insurers' agent's testimony that he knew nothing about value of airplane hangar and that he relied on insured's information held not error.

Rejected evidence not brought into record cannot be reviewed.

1. The deposition of a litigant can be taken and read in evidence the same as that of any other witness, and in the instant case plaintiff's deposition was properly received in evidence.

2. In consolidated actions to recover on two fire insurance policies which covered an airplane hangar, the record examined, and, on the errors assigned on the overruling of defendants' demurrers to plaintiff's evidence, it is held:

(a) The fact that the policies never came into the manual possession of insured did not defeat plaintiffs' causes of action.

(b) The plaintiff who contracted for the insurance was the unconditional and sole owner of the hangar within the terms of the insurance policies, although he had acquired it for various considerations which included a sum of money to be paid in annual installments and only two-fifths of them had been paid.

(c) The plaintiffs' causes of action did not fail because the hangar was located on leased ground, because that fact had been fully disclosed to defendants' agent at the time the insurance contracts were made and he promptly apprised his principals to that effect.

(d) In the absence of a special contract, an airplane hangar erected on leased premises is a trade fixture which belongs to the lessee and not to lessor.

(e) Under the circumstances stated in the opinion, the failure of plaintiffs to submit formal proofs of loss did not defeat plaintiffs' causes of action.

3. Other objections to the judgments, summarized in the opinion, considered and not sustained.

Appeal from District Court, Cowley County; Oliver P. Fuller, Judge.

Consolidated actions by Nathaniel Lawson and another against the Southern Fire Insurance Company and against the Mercantile Fire Insurance Company. From adverse judgments, defendants appeal.

Albert Faulconer, Kirke W. Dale, C. L. Swarts, all of Arkansas City, and Hogsett, Smith, Murray & Trippe, of Kansas City, Mo., for appellants.

W. L. Cunningham, D. Arthur Walker, Fred G. Leach, and Wm. E. Cunningham, all of Arkansas City, for appellees.

DAWSON Justice.

These were consolidated actions to recover on two insurance policies which covered an airplane hangar near Arkansas City which was destroyed by fire.

Plaintiff Lee Lawson owned the hangar; his father, plaintiff Nathaniel Lawson, had a mortgage on it. It had been purchased in Texas from the federal government by the Arkansas City Chamber of Commerce, transported from Texas, and re-erected on leased premises near Arkansas City. It had a capacity to house 12 airplanes, with a workshop and repair annex attached thereto. It was insured in various amounts aggregating $8,000 by different insurance companies. The insurance contracts of present concern, for $2,000 each, were effected in June, 1930. In consideration for this insurance, plaintiff paid $8.80 in cash and gave his promissory note for $200 payable in 70 days. This insurance was negotiated between Lee Lawson and Walter Colvin, local agent and representative of defendant companies. Colvin accepted the note for $200, and it was agreed that he should hold the policies until the note was paid. Any other facts which may require attention will be stated as we proceed.

The hangar was totally destroyed by fire on July 6, 1930. Payment of the insurance was resisted by these defendants, and this action followed.

Plaintiffs' respective petitions recited pertinent facts on which to predicate prima facie liability. Defendants filed separate answers in which they denied that Lee Lawson was the owner of the hangar, and denied that he had any insurable interest in it. It was alleged that at the time the insurance contracts were effected defendants were not aware that the hangar was on leased premises; that they did not know that the hangar was mortgaged by Lee Lawson to Nathaniel Lawson; that Lee Lawson did not perform the obligations to which he was bound by the terms of the policies and in consequence they never became effective.

Defendants' answers admitted that shortly after the fire their agent was notified of the loss, but that formal proofs thereof had never been made by plaintiffs, and that the submission of these had not been waived. It was also alleged that Lee Lawson had misrepresented and overstated the value of the hangar and that defendants had relied thereon.

Defendants also pleaded certain paragraphs of the policies which among other matters provided that the insurance contracts would be altogether void if the insured had concealed or misrepresented any material fact, or if the interest of the assured was other than unconditional and sole ownership, or if the insured building was situated on land not owned by the insured in fee simple. It was also alleged that Lee Lawson's ownership of the hangar was only conditional, that the Arkansas City Chamber of Commerce had an interest in it, and that the title and ownership of the hangar was vested in one Thompson, lessor of the aviation field on which the hangar was situated.

Further allegations of the answers were that the premiums on the policies had never been paid, that the policies had never been delivered, and that defendants were not liable thereon.

These actions were begun on August 14, 1931, some thirteen months after the fire. The following day plaintiffs served notice on defendants to take the deposition of Lee Lawson in Arkansas City on August 25, 1931. Counsel for both parties appeared, and Lawson's deposition was begun and continued until the following day, at which time it was completed.

The action came on for trial on April 22, 1932, before a jury, Lawson's deposition was read over defendants' objection. Other oral and documentary evidence was adduced at length by the parties. The jury returned verdicts for plaintiffs for the amounts of the policies in both cases. Motions for a new trial were overruled, and judgments entered accordingly.

Defendants appeal, urging various errors which so far as practicable will be noted in the order of their presentation:

1. The first error urged relates to the admission of Lee Lawson's deposition in evidence. They argue that, while our Code permits depositions of witnesses to be taken (R. S. 60--2819 et seq.), it does not include parties. Under our practice, however, a party may be a witness, and therefore Lawson's deposition was as regularly taken as if he had no interest in the litigation. 18 C. J. 611; 4 Jones on Evidence, p. 3820; 2 Bancroft's Code Practice and Remedies, § 1166. In this case it was peculiarly proper and prudent to take Lee Lawson's deposition. He followed the dangerous vocation of an aviator; after the destruction of his hangar, his vocation had taken him to Mexico for a number of months, and when his deposition was taken he was about to set out for California. Defendants argue that it was unfair to take Lawson's deposition so quickly after beginning the action when counsel had not had sufficient time to familiarize themselves with the case so as to cross-examine him thoroughly. However, the trial did not occur for more than seven months after his deposition was taken, and not during that interval did they discover anything which they might have elicited from Lawson if his deposition had not been taken until some later date. The trial court's ruling on this point was correct.

2. It is next contended defendants' demurrer to the evidence should have been sustained. Various points are argued under this assignment, one of which is that, by agreement of plaintiff and defendants' agent, Colvin, the policies were retained...