The Home Insurance Company of New York v. Wagner

• Decision Date: 18 July 1899
• Docket Number: 547
• Citation: 9 Kan.App. 93,57 P. 1049
• Parties: THE HOME INSURANCE COMPANY OF NEW YORK v. E. A. WAGNER
• Court: Kansas Court of Appeals

57 P. 1049

9 Kan.App. 93

THE HOME INSURANCE COMPANY OF NEW YORK v. E. A. WAGNER

No. 547

Court of Appeals of Kansas

July 18, 1899

Decided July, 1899.

Error from Jefferson district court; LOUIS A. MYERS, judge.

Judgment of district court reversed.

SYLLABUS

PRACTICE DISTRICT COURT -- Allegations of Value -- Amendment after Verdict. In an action upon an insurance policy for the loss sustained by the destruction of the property insured, the defendant has a right to rely upon the allegations of the petition as to the value of said property, and where the jury find a verdict for a larger sum than is warranted by the petition, it is reversible error for the court, after verdict, to allow the plaintiff to amend his allegations of value so as to cover the amount of the verdict.

Fyke, Yates & Fyke, and J. G. Slonecker, for plaintiff in error.

Stebbins & Evans, for defendant in error.

OPINION

WELLS, J.:

This action was brought in the district court upon a policy of insurance issued by the Home Insurance Company to Daniel Focht, insuring him against loss by fire to the amount of $ 300 on his storage building in the city of Madison, Kan., and $ 1375 on baled hay therein. Said policy contained a three-fourths valuation clause. With the consent of the insurance company, the policy was assigned to E. A. Wagner, the plaintiff below, and afterward, within the time covered by the policy, the property was wholly destroyed by fire. In the petition the value of the building was alleged to be over $ 300, and it was alleged that there were 330 tons of hay, of the value of $ 1650, and the plaintiff's interest therein was more than the insurance thereon. In answer to the petition, the defendant pleaded a violation of the terms of the policy by conveying an undivided one-half interest in the property insured to Mrs. Holderman, and by encumbering the property by chattel mortgage.

To this answer the plaintiff replied that if he had conveyed the property it was simply intended as a chattel mortgage to secure the payment of money, and that defendant through its officers and agents had knowledge thereof and consented thereto. Afterward, by leave of court, the plaintiff amended his petition by making Daniel Focht, the Madison Bank and Charlotte Holderman defendants therein, and asked that any interest they might have in said property might be held inferior to plaintiff's; and by alleging that the building destroyed was real estate, and asking $ 150 attorney fee for collecting said loss.

Charlotte Holderman answered, admitting that she was the owner of one-half of the hay burned, and asked judgment for one-half of the insurance thereon.

The case was tried to the court and a jury, and a verdict was returned for the plaintiff against the defendant insurance company for $ 1825.75. After the verdict was returned into court the plaintiff...