The Fire Association of Philadelphia v. Taylor

• Decision Date: 05 October 1907
• Docket Number: 15,186
• Citation: 91 P. 1070,76 Kan. 392
• Parties: THE FIRE ASSOCIATION OF PHILADELPHIA v. S. E. TAYLOR
• Court: Kansas Supreme Court

91 P. 1070

76 Kan. 392

THE FIRE ASSOCIATION OF PHILADELPHIA v. S. E. TAYLOR

No. 15,186

Supreme Court of Kansas

October 5, 1907

Decided July, 1907.

Error from Morris district court; OSCAR L. MOORE, judge.

STATEMENT.

THE policy sued on in this case was, in consideration of $ 6 issued for a term of three years, first insuring $ 600 upon plaintiff's dwelling-house, "situate on lot 14, in block 1, village of Helmick, Kan." The insurance began April 1, 1903. For a further consideration of $ 7 other insurance ($ 700) was provided for the same term.

When the additional $ 700 was added, instead of preparing a new policy a form, or printed slip, was attached to the policy of April 1, 1903, embodying the additional items insured together with the dwelling. This form thereafter, with the printed policy, constituted the insurance contract held by plaintiff. So far as is material to the questions now involved, the policy reads as follows:

"The Fire Association of Philadelphia, in consideration of the stipulations herein named, and of $ 6 [and $ 7] premium, does insure S. E. Taylor for the term of three years from the first day of April, 1903, to the first day of April, 1906, at noon, against all direct loss or damage by fire, except as hereinafter provided, to an amount not exceeding $ 600 [and $ 700], to the following described property, while located and contained as described herein, and not elsewhere, to wit:

$ 600 on his . . . dwelling-house, . . . situate on lot 14, in block 1, village of Helmick, Kan.

$ 100 on household furniture, . . . while contained therein.

$ Nothing on

$ 75 on frame, board-roof barn, situate on lots 12 and 13, block 1.

$ 450 on horses, . . .

$ 75 on vehicles, robes, horse and carriage equipments and garden tools and harnesses.

$ Nothing on hay, grain, and feed; all only while contained in above-described barn. . . .

"To be attached to policy No. 2676786 of the Fire Association of Philadelphia. . . .

"If property covered by this policy is so endangered by fire as to require removal to a place of safety, and is so removed that part of this policy in excess of its proportion of any loss and of the value of property remaining in the original location shall, for the ensuing five days only, cover the property so removed in the new location; if removed to more than one location, such excess of this policy shall cover therein for such five days in the proportion that the value in any one such new location bears to the value in all such new locations."

On August 5, 1904, a fire damaged part of the property insured. Settlement was made, and plaintiff appears to have given a receipt and attached to it the policy, which receipt reads as follows:

"$ 84.50

HELMICK KAN., August 24, 1904.

Received of Fire Association of Philadelphia, Pennsylvania, through agent at the sum of eighty-four 50/100 dollars, it being in full payment and compromise settlement of all claims and demands for loss and damage by fire which occurred on the 5th day of August, 1904 (as set forth in accompanying proof of loss), under policy No. 2676786, issued at the Council Grove, Kan., agency of said company, and in consideration of said payment the sum insured is reduced in that amount, leaving the sum of third item canceled. Fifth item reduced $ 9.50, only, now in force under said policy covering proportionately, and in the same manner on the various items named therein, as the amount of loss thereon bears respectively thereto.

S. E. TAYLOR, Assured."

The fire of August 5 destroyed the barn described in the policy and insured under its third item.

The horses described in item No. 4 were not burned, and after the barn had been destroyed plaintiff moved them to another barn on land he owned, not on either of the lots described in the policy but across a public street, or road, and the right of way of the Missouri Pacific Railway Company.

On January 15, 1905, this other barn, so located on other land, and situated on the opposite side of a street and railroad right of way from the first, was burned, and with it several horses. Plaintiff made claim for the loss of these, as property insured under the policy described, instituted suit therefor, and obtained judgment for $ 450, with interest and costs. The defendant complains.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. WRITTEN CONTRACTS--Rules of Construction--Fire-insurance Policy. A policy of insurance, being an instrument prepared by the insurer, should, in case of doubt as to its provisions, be strictly construed against the insurer and liberally in favor of the insured. The object of the contract being for indemnity against loss, it will be so construed, in case of doubt, as to support rather than defeat the indemnity. As, however, in contracts jointly prepared by the parties thereto, if the terms of a policy are clear and unambiguous they will be taken in their plain and ordinary sense and no construction is necessary.

2. WRITTEN CONTRACTS--Ambiguity--Conduct of the Parties. If the parties to an ambiguous contract have subsequently acted upon it in such a manner as to indicate their mutual intent therein or understanding thereof, a court, in construing such contract, should, as a rule, adopt the construction indicated by such action.

3. FIRE-INSURANCE--Settlement by Adjuster--Presumption of Authority--Notice. When property upon which there is insurance is destroyed by fire, and the insured informs the insurer thereof, and soon thereafter a person appears at the scene of the fire and adjusts and pays the loss and takes from the insured a receipt for the payment, in the name of the insurer, it will be presumed that such person is the agent of the insurer and that the insurer had notice and knowledge of such facts as came to the notice and knowledge of such agent affecting the business so done by the agent.

Fyke & Snider, for plaintiff in error.

Nicholson & Pirtle, for defendant in error.

OPINION

SMITH, J.:

It is agreed in the briefs of the parties that the only question for our determination is whether the horses burned were covered by the policy of insurance in the location where they were burned or whether the contract limited the liability of the association for loss by fire on this property while the horses were contained in the barn described in the policy and were not elsewhere. The only evidence set forth in the record is the following stipulation:

"It is stipulated and agreed in this case that the following are the facts in the case:

"It is agreed by the parties hereto that the horses that were burned were of the value of four hundred fifty dollars ($ 450); that at the time the horses were burned they were in a barn on the opposite side of the street, or road, and not on either one of the lots described in the policy, but on the premises belonging to the plaintiff; that the right of way of the Missouri Pacific railroad is between the lots...