Tersina v. The Liverpool and London and Globe Insurance Company

• Decision Date: 08 December 1917
• Docket Number: 21,126
• Citation: Tersina v. The Liverpool and London and Globe Insurance Company, 169 P. 559, 102 Kan. 87 (Kan. 1917)
• Parties: IGNACE TERSINA, Appellee, v. THE LIVERPOOL AND LONDON AND GLOBE INSURANCE COMPANY, LIMITED, and H. F. BROOKS (et al.), Appellants
• Court: Kansas Supreme Court

169 P. 559

102 Kan. 87

IGNACE TERSINA, Appellee, v. THE LIVERPOOL AND LONDON AND GLOBE INSURANCE COMPANY, LIMITED, and H. F. BROOKS (et al.), Appellants

No. 21,126

Supreme Court of Kansas

December 8, 1917

Decided July, 1917.

Appeal from Cherokee district court; JAMES N. DUNBAR, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

INSURANCE--Loss--Inconsistent Special Findings--Evidence--New Trial.The court refused to order judgment for defendants upon the evidence or upon the special findings of the jury, but granted a new trial because the verdict returned by the jury was not supported by the evidence and because the special findings were inconsistent with each other and with the general verdict.Held, not error.

A. S Wilson, of Galena, and S. L. Walker, of Columbus, for the appellants.

C. A. McNeill, of Columbus, and E. B. Morgan, of Galena, for the appellee.

OPINION

JOHNSTON, C. J.:

This was an action by Ignace Tersina against the Liverpool and London and Globe Insurance Company, H. F. Brooks, its agent, and W. B. Simms, the deputy state fire marshal, to recover damages for alleged malicious prosecution and false imprisonment.A demurrer to the evidence of plaintiff was sustained as to the defendant Simms.The jury returned a general verdict in plaintiff's favor against the insurance company for $ 25, and in favor of the defendant Brooks.This appeal is taken from the court's orders overruling defendants' motion for judgment upon the special findings of the jury and sustaining plaintiff's motion for a new trial.

Plaintiff's house and most of its contents were destroyed by fire.The property was insured by the defendant company in the sum of $ 600.Brooks, the local agent of the insurance company, was notified of the fire, after which he had plaintiff make out a list of the lost articles in the house, and the loss was reported to the insurance company at Chicago.Van Valkenburg, the company's state agent at Kansas City, was directed to investigate and adjust the claim, with the result that he forwarded plaintiff's proof of loss in the sum of $ 595.60 to the Chicago office with the recommendation that a draft for the amount be issued.After Brooks received this draft and before he had delivered it to plaintiff, he became suspicious as to the origin of the fire and suspected that claim had been made for property that was not burned.He informed the insurance company of his suspicions, and he testified that he thought it was such a case as should be investigated as provided by law.Van Valkenburg, acting for the insurance company, then reported the matter to the state fire marshal's office.In the investigation that followed the county attorney held an inquisition, at the close of which he did not immediately issue a warrant, but waited until Simms and Brooks again went to Carona, the village in which plaintiff's house was situated, for further inquiry into the matter.Although they did not find more evidence Simms advised the county attorney that he thought a warrant should be issued for plaintiff.At the suggestion of the county attorney Simms then had Brooks draw up a complaint, as the county attorney was busy with other matters, and Simms swore to the same.Plaintiff was arrested and held in jail twenty-four hours pending the obtaining of bond.At the preliminary hearing, after the introduction of the state's evidence, the complaint, at the suggestion of the county attorney, was dismissed.It appears that while the investigation was in progress some attempts were made by the insurance company to compromise the plaintiff's claim, but no settlement was reached and an action was commenced on the policy; but after the dismissal of the prosecution the check formerly withheld was delivered to the plaintiff.The plaintiff expended $ 100 in attorney fees, $ 10 for an interpreter, and lost ten days' time on account of the arson prosecution.This action was then brought, alleging in substance that the defendants were in a conspiracy for the purpose of maliciously bringing about the plaintiff's arrest and imprisonment, and of defrauding him out of the amount to which he was entitled under the policy.

The substance of the jury's special findings is that the insurance company was instrumental in instituting the criminal action through the correspondence of their agents setting in motion the machinery of the law through the fire marshal's office; that the insurance company deemed the fire to be of suspicious origin; that it was right for the company to report the fire to the fire marshal's office that the insurance company committed wrong in instituting criminal proceedings after the inquisition showed no grounds of action; that the cause of the criminal action being instituted was the company's claim that more evidence could be procured; that the inquisition was held for the honest purpose of ascertaining if the fire was incendiary; that Brooks and Van Valkenburg held malice against plaintiff before the filing of the complaint by the fire marshal, and that the cause of such malice was false...