McKenzie v. Fidelity-Phenix Fire Ins. Co.

• Decision Date: 10 October 1931
• Docket Number: 30055,30056.
• Citation: 133 Kan. 721,3 P.2d 477
• Parties: McKENZIE v. FIDELITY-PHENIX FIRE INS. CO. et al.
• Court: Kansas Supreme Court

3 P.2d 477

133 Kan. 721

McKENZIE v. FIDELITY-PHENIX FIRE INS. CO. et al.

Nos. 30055, 30056.

Supreme Court of Kansas

October 10, 1931

Syllabus by the Court.

Brick building held not "wholly destroyed" by fire within valued policy statute, where part of walls remaining may be reasonably used in reconstruction (Rev. St. Supp. 1930 40--905).

A brick building is not "wholly destroyed" by fire within the meaning of the valued policy statute if a part of the walls remaining after the fire may be reasonably used in the reconstruction of the building.

On partial destruction of building, insured who agrees to appraisal under fire policy and accepts award of appraisers is bound thereby.

Where a building insured against fire is partially destroyed thereby and the parties agree to an appraisal to determine the amount of damage in accordance with the terms of the policy, and the insured accepts the award of the appraisers, in the absence of fraud or mutual mistake, he is bound thereby.

Appeal from District Court, Sedgwick County, Division No. 1; J Everett Alexander, Judge.

Action by Donald F. McKenzie against the Fidelity-Phenix Fire Insurance Company and another. Judgment for defendants, and plaintiff appeals.

Joseph Taggart and Harold H. Malone, both of Wichita, for appellant.

A. M. Ebright, Allen B. Burch, J. B. Patterson, and P. K. Smith, all of Wichita, for appellees.

SLOAN J.

This was an action to recover on two fire insurance policies. The defendants prevailed, and the plaintiff appeals.

The plaintiff brought suit against the defendant the Fidelity-Phenix Fire Insurance Company, claiming a balance of $447.21 on a $4,000 policy, and a suit against the defendant the Harmonia Fire Insurance Company, to recover a balance of $559.01 on a $5,000 policy. The petition in each case was identical, except the name of the defendant and the amount claimed. It alleged that the plaintiff was the owner of a three-story brick building which was wholly destroyed by fire on February 7, 1929; that the whole amount of insurance on said building was $24,800, and that at the time of the fire the policies were in full force and effect; that the defendant the Fidelity-Phenix Company had paid $3,552.79 on a $4,000 policy, and the Harmonia Company had paid $4,440.99 on a $5,000 policy; that the defendants knew the building was wholly destroyed; that the amount due on each policy was definite and certain; and that he received no consideration whatsoever for surrendering their claim and asked for judgment for the difference between the amount paid and the face of the policy, together with interest and attorney fees. The defendants answered, admitting the execution of the policies and that the policies were in full force and effect on the date of the fire; that the defendants, together with other insurance companies, had insured the property in question to the amount of $24,800; that the plaintiff and the defendants disagreed as to the amount of loss and damage sustained, and they, with other insurance companies, agreed in writing that the loss and damage to the building insured by the defendants should be determined by three disinterested appraisers; that the appraisers were selected by the parties as provided by the terms of the policies, who appraised the loss and damage to the building and found it to be $22,027.32, which amount was apportioned among the companies according to the amount of insurance held by each of them. A copy of the agreement was attached to the answer and also copies of the receipts showing that the plaintiff accepted the amount of the award and receipted therefor. When the case came on for trial, the trial court made the following statement:

"It seems to me there are two conditions here under which the plaintiff might recover, first, if there was a total loss and there was no bona fide dispute to that question, and settlement was made without any consideration. Second, that there was a total loss and that neither the plaintiff nor the defendant knew it was a total loss but both were of the opinion that there was not a total loss--no dispute about the matter but just by ignorance of certain facts, both believed it was not a total loss.

"In the latter situation, the accord and satisfaction settlement might be avoided by mutual mistake. In the first situation, it might be avoided by lack of consideration.

"If, however, there was a total loss and there was a bona fide dispute as to that question, the settlement would be good, or if there was not a total loss, the settlement might be good.

"If it is agreeable to counsel, the court will use the jury in an advisory capacity and submit special questions."

The parties then agreed that the cases might be consolidated, tried as one case, and that the court use the jury in an advisory capacity and submit special questions. Accordingly, questions were submitted and answers made by the jury as follows:

"1. Do you find that the material in plaintiff's building, not consumed by the fire, had, immediately after the fire,

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