The British America Assurance Company v. Bradford

• Decision Date: 10 December 1898
• Docket Number: 10924
• Citation: 55 P. 335,60 Kan. 82
• Parties: THE BRITISH AMERICA ASSURANCE COMPANY v. J. H. BRADFORD
• Court: Kansas Supreme Court

55 P. 335

60 Kan. 82

THE BRITISH AMERICA ASSURANCE COMPANY v. J. H. BRADFORD

No. 10924

Supreme Court of Kansas

December 10, 1898

Decided July, 1898.

Error from Morris District Court; O. L. MOORE, judge.

Judgment affirmed.

Sylvester G. Williams, and Bertram & Nicholson, for plaintiff in error.

Madden Bros., and J. M. Miller, for defendant in error.

OPINION

DOSTER, C. J.:

This was an action brought by J. H. Bradford against the British America Assurance Company upon a policy of fire insurance executed under what is called the "valued-policy law." (Laws 1893, ch. 102.) The policy contained a forfeiture clause terminating the rights of the insured under it in the event that more than $ 3000 additional insurance should be placed upon the property. It also contained stipulations providing for arbitration in the events of loss and a disagreement as to the amount justly payable. The amounts of the risks, together with descriptions of the property upon which taken, were stated in the policy as follows:

"$ 666.00 on his three-story and basement, stone and frame shingle-roofed, water-power, flour-mill building, situate," etc.

"$ 1334.00 on all fixed and movable machinery, gearing, shafting, belting, tools, and scales, while contained in above-described building."

The insured property was totally destroyed by fire. The insured had placed upon it, contrary to the provisions of the policy, more than $ 3000 additional insurance. After the fire, correspondence occurred between the insured and the company's general counsel looking to a settlement of the loss, and personal negotiations with the same end in view were also had between him and the company's adjuster. The insured exhibited the policy in question to the adjuster and informed him of the overinsurance. After receiving this information and examining the policy, the adjuster stated to the insured that his policy was "all right." The insured likewise informed the company's general counsel of the overinsurance. Upon receiving this information the counsel failed to make any claim of forfeiture, but wrote to the insured that, while not waiving the right of forfeiture, he would reserve the matter for investigation and consideration. After this the company and the insured chose arbitrators to determine the amount of the loss. The arbitration was not had, for some reason not clearly explained to us in the briefs of counsel, and which we have not examined the record to ascertain. Whatever it may have been it is immaterial to a correct determination of the case. After the failure of the attempt to arbitrate suit was instituted. Special findings were made by a jury and upon them judgment was rendered for the full amount of the policy, together with an attorney's fee to plaintiff as allowed by the statute.

The insurance company prosecutes error to this court. It contends: (1) That the mill machinery and fixtures described in the second of the above-quoted clauses of the policy were not real property, but were personal property, and therefore that the loss as to them was not covered by the terms of the valued-policy law of 1893; (2) that the action cannot be maintained as to such personal property because of the agreement to arbitrate concerning it; (3) that the policy was forfeited because of a violation of the clause in it against overinsurance; (4) that the statute allowing attorney's fees to plaintiffs in such cases is unconstitutional. None of these contentions is sound. As to the first the jury was specially asked: "Was the machinery covered by the policy of insurance in this case firmly fixed and attached to and connected with the building, and intended to be a part of the building, and treated as such by all parties hereto?" This was answered: "Yes." This finding establishes the character of the mill machinery as real property, and therefore brings it fully within the terms of the valued-policy law. See in this connection Havens v. Fire Ins. Co., 123 Mo. 403, 27 S.W. 718. The second proposition of the plaintiff in error falls with the first. If the...