The Cloud County Bank of Concordia v. The German Insurance Company of Freeport

• Decision Date: 20 July 1897
• Docket Number: 153
• Citation: 6 Kan.App. 219,49 P. 688
• Parties: THE CLOUD COUNTY BANK OF CONCORDIA v. THE GERMAN INSURANCE COMPANY OF FREEPORT, ILLINOIS
• Court: Kansas Court of Appeals

49 P. 688

6 Kan.App. 219

THE CLOUD COUNTY BANK OF CONCORDIA v. THE GERMAN INSURANCE COMPANY OF FREEPORT, ILLINOIS

No. 153

Court of Appeals of Kansas, Northern Department, Central Division

July 20, 1897

July 20, 1897.

Error from Cloud District Court. Hon. F. W. Sturges, Judge. Affirmed.

Judgment affirmed.

Kennett & Peck, for plaintiff in error.

G. W Barnett, for defendant in error.

OPINION

MAHAN P. J.

This is an action on a policy for fifteen hundred dollars on a livery barn and contents. The defendant answered in avoidance of its liability on the policy alleging, first, the existence, without the knowledge or consent of the defendant, of a mortgage on the barn at the time the policy was issued, which was not indorsed upon or expressed in the policy; second, that the plaintiff in error permitted foreclosure proceedings upon the property, without the knowledge or consent of the defendant; and, third, that the plaintiff in error took out additional insurance upon all the property without the knowledge or consent of the defendant, which was not permitted by the policy and was in violation of its terms.

The provision of the policy to which the first defense is addressed is as follows:

"If the property above described is incumbered in any manner, it must be so represented to this company and expressed in this policy in writing, otherwise this insurance contract shall be void and of no effect."

The clause in the policy to which the second defense is addressed is as follows:

"If the property hereby insured be levied upon, or taken into possession or custody under any legal process, or if the title or possession be disputed in any proceedings at law or equity, or if the property be advertised for sale under a deed of trust or mortgage, or if a suit be commenced to foreclose a mortgage on the property insured, this policy shall at once cease to be binding upon the Company."

The provision of the policy to which the third defense is addressed is as follows:

"The consent of this Company to all additional insurance contracts relating to the property herein specified as insured, must be obtained and indorsed on this policy, or this policy will be void and of no effect, whether such additional insurance contracts shall be valid or not, and whether such other companies shall be solvent or not."

A copy of the policy was attached to the plaintiff's petition and made a part thereof. The plaintiff introduced his evidence showing the loss and the amount or value of the property, and rested.

It was developed, by the cross-examination of the plaintiff in error upon his case, that at the time the policy was issued the property was mortgaged to the plaintiff for the sum of five thousand dollars and accrued interest. The defendant offered evidence in support of its several defenses, and, at the conclusion of the evidence, the court instructed the jury to return a verdict for the defendant.

The only assignment of error is this action of the court in giving to the jury a binding charge to return a verdict for the defendant. Was there anything in the case, developed by the evidence, to submit to the jury? Or, could a verdict for the plaintiff have been sustained upon the evidence contained in the record?

In rebuttal of the first defense, there was evidence tending to show that the Company, through its general agent who issued the policy, knew of the existence of the mortgage at the time the contract was made and delivered. It is true the agent denied all knowledge of the existence of the mortgage, but it was a question to go to the jury, and, if this were the only defense, the case should have gone to the jury to determine whether or not, at the time the contract was made, the Insurance Company, through its agent, had knowledge of the incumbrance, the existence of which is plead to avoid the...