National Mut. Fire Ins. Co. v. Barnes

• Decision Date: 09 March 1889
• Citation: 41 Kan. 161,21 P. 165
• Parties: THE NATIONAL MUTUAL FIRE INSURANCE COMPANY v. HIRAM S. BARNES et al
• Court: Kansas Supreme Court

21 P. 165

41 Kan. 161

THE NATIONAL MUTUAL FIRE INSURANCE COMPANY v. HIRAM S. BARNES et al

Supreme Court of Kansas

March 9, 1889

Error from Ottawa District Court.

ACTION to recover upon an insurance policy. Judgment for Barnes & Bush, for $ 945.35, at the May term, 1887. The defendant company brings the case here. The opinion states the facts.

Judgment affirmed.

Chas A. Hiller, for plaintiff in error.

R. F Thompson, for defendants in error.

SIMPSON C. All the Justices concurring.

OPINION

SIMPSON, C.:

Action to recover on an insurance policy of $ 1,000, on a steam elevator at Bennington, Ottawa county, commenced in the district court of that county on the 15th day of March, 1887. The company resisted payment upon the ground of a false representation and warranty of title of the land, which was in part a portion of the right-of-way of a railroad company. The reply alleged that the agents of the company, Simmons & Cole, had known the exact condition of the title, and filled up the blanks, and wrote the application, except the signature. The case was tried by the court, and special findings of fact were made, and judgment rendered for the plaintiffs below. The court found in addition to the facts admitted, the following:

"During the whole of the month of September, 1886, W. B. Simmons and W. L. Cole, partners under the firm-name of Simmons & Cole, were the duly-authorized agents of the defendant at Bennington, Kansas, for the purpose of taking applications and issuing policies of insurance for the defendant, and as such agents they had full authority to take the written application mentioned in the defendant's answer herein, and to issue the policy of insurance set forth in the plaintiff's petition herein. The said application was taken by said agents for the said defendant on the 20th day of September, 1886, and was written and prepared entirely by them, except the signature of the plaintiffs thereto, and at the time said application was being so written and prepared and in answer to the questions therein contained, said plaintiff gave to said agents a full and correct account and statement of the title to the land upon which said elevator stood, and fully and correctly informed said agents that a part of said elevator stood on land leased from the Solomon Railroad Company, being a part of its right-of-way; and that at the time said application was so made, and before the same was signed by the plaintiffs, said agents had full knowledge of all the facts concerning the titles to the land upon which said elevator was located. In consideration for the issuance of said policy, and at its date, the said plaintiffs paid to the said defendant the sum of $ 35, and then executed and delivered to said defendant their promissory note for $ 175, payable by installments to said defendant at any time or times as the board of directors of said defendant might order. The said plaintiffs were the owners of the property described in said policy of insurance at the time of its insurance, and at the time said property was destroyed by fire. On the 5th day of November, 1886, the property described in said policy of insurance was totally destroyed by fire. On the 22d day of December, 1886, the said plaintiffs furnished the defendants with proof of said loss, and have otherwise performed all the conditions of said policy on their part. At the time said application was taken and said policy was issued, the property therein insured by the defendant was also insured in another company for the sum of $ 2,000, which fact was fully set forth in said application. The property described in said policy and insured thereby was at the time of its destruction by fire as aforesaid of the value of $ 2,783.32, and the amount and value of the loss under said policy was $ 931.06, which defendant should pay to plaintiffs."

The assignments of error are, that the findings are not supported by sufficient evidence; that they do not authorize the conclusions of law; that improper testimony was admitted; and that the motion for a new trial was improperly overruled. All the findings of fact are supported by the evidence; that of the agency of Simmons & Cole is clearly established their knowledge that a part of the elevator was situated on the right-of-way of the railroad company is sufficiently established; and the weight of the evidence considered in connection with all the circumstances is, that the insured answered the controlling question in the affirmative, by the advice of the...