The Liverpool & London & Globe Insurance Company v. Heckman
| Decision Date | 08 February 1902 |
| Docket Number | 12,389 |
| Citation | 67 P. 879,64 Kan. 388 |
| Court | Kansas Supreme Court |
| Parties | THE LIVERPOOL & LONDON & GLOBE INSURANCE COMPANY v. L. S. HECKMAN |
Decided January, 1902.
Error from Montgomery district court; A. H. SKIDMORE, judge.
Judgment affirmed.
SYLLABUS BY THE COURT.
1. PLEADING AND PRACTICE -- Invited Ruling. The general rule that a party can secure no advantage from an invited ruling applies where the court proceeds with the trial upon the erroneous theory adopted by the parties in their pleadings, when the party complaining, by his pleading, first induced the form of pleading adopted.
2. INSURANCE -- Total Loss" Defined. The phrase "total loss," or its equivalent, "wholly destroyed," when applied to insurance, does not mean the complete annihilation or extinction of the property insured. Nor does the term require that the portion of the property remaining after loss shall have no value for any purpose whatever. It means only such destruction or loss of the property as deprives it of the character in which it was insured.
3. INSURANCE -- Question for Jury. Whether a loss by fire of property covered by a policy of insurance is total or only partial is, ordinarily, a question of fact for the jury.
Quinton & Quinton, for plaintiff in error.
J. B & W. E. Ziegler, and A. B. Clark, for defendant in error.
OPINION
A contention, more difficult of disposition than the merits of the controversy, arises in this case upon the form of the pleadings. This is an action brought on a policy of insurance. The petition sets forth a copy of the policy and alleges a total loss of the insured property. The policy contains provisions for the ascertainment, by a board of appraisers, of the amount of the loss in a case of disagreement as to the amount, as a condition precedent and prerequisite to the bringing of an action on the policy. These conditions, however, have no force or application in case of total loss occurring in those states having a valued-policy law. Where there is nothing to appraise, a provision for appraisement is nugatory and void. ( O'Keefe v. Insurance Co., 140 Mo. 558, 41 S.W. 922; German Ins. Co. v. Eddy, 36 Neb. 461, 54 N.W. 856, 19 L. R. A. 707; Lancashire Ins. Co. v. Bush, 60 Neb. 116, 82 N.W. 313.) This state has a valued-policy law. (Gen. Stat. 1901, § 3407).
The petition averring a total loss, it was not incumbent upon plaintiff to allege or show any compliance with the conditions of the policy pleaded providing for an appraisement of the amount of the loss. Nor was it necessary to plead or show an excuse for noncompliance. These conditions might be wholly ignored. But, under such pleading, the proof must conform to and sustain the averment of total loss or the terms of the contract pleaded will defeat a recovery. A sufficient answer to such a pleading is a denial of total loss. The provisions for appraisement are wholly immaterial.
The defendant in this case first answered by a qualified general denial, admitting the making of the policy as pleaded, and loss thereunder, but averring such loss to be partial, not total, and set forth at length, as a further special defense, the provisions contained in the policy for appraisement and the stipulation prohibiting the bringing of an action thereon until the amount of loss had been ascertained by appraisers; a demand for appraisement by the company; a compliance therewith by plaintiff; the appointment of an appraiser by the plaintiff and by the company; the entering upon an appraisement; that no award of appraisers had been made, and, as a consequence, the action was prematurely brought. All of these allegations of special defense were either surplusage or evidential only of the fact that the loss was partial and not total, and not regarded by the plaintiff to be total, and constituted no defense to the cause of action stated in the petition.
To this answer plaintiff replied by general denial, and, by way of a special reply, denied any disagreement as to the amount of the loss; admitted the appointment of appraisers; the entering upon an appraisement, but averred the abandonment of the appraisement entered upon by the company without fault on the part of plaintiff. To this special reply defendant filed a general demurrer, which was overruled. Upon the trial, plaintiff offered evidence tending to establish both a total loss under the policy and an abandonment by the company of the appraisement entered upon. In addition to the general verdict, the jury found specially both a total loss and the abandonment of the appraisement by the company. Defendant, at the trial, proceeded upon the theory that the loss was not total but partial; that an appraisement was necessary, and that it had been neither waived nor abandoned by the company. It is now earnestly contended that the reply was a fatal variance or departure from the cause of action stated in the petition, and for this reason the judgment must be reversed.
If the special reply constitutes a departure from the cause of action set forth in the petition, it is well settled that such departure may be taken advantage of by demurrer, and the demurrer to the reply should have been sustained. That the overruling of this demurrer and the reception of evidence by the court in support of the allegations of the special reply are not reversible errors will fully appear when carefully considered, for two reasons: First, no error is assigned by counsel upon the overruling of the demurrer; second, the ground upon which this pleading, against which the demurrer was lodged and under which testimony was admitted by the trial court, is defective is not because of a departure from the original cause of action set forth in the petition, nor for the reason alleged in the demurrer, that it is not responsive and does not state facts sufficient to constitute a defense to the allegations of the special answer. It is directly responsive and a good plea of confession and avoidance of the special matter pleaded in the answer; but it is defective because the allegations of the answer to which the special reply was directed constitute a false issue, foreign to the real controversy in the case as made by the petition, and for this reason any reply thereto would be sufficient. As this false issue was raised and the special reply called forth by the defective pleading of defendant, the rulings of the trial court in the reception of evidence in support of its allegations, if erroneous, are not available to defendant as error. The theory upon which the trial proceeded, if erroneous, was invited by the defendant. Elliott, in his work on Appellate Procedure, section 627, says:
"The general doctrine that a party can secure no advantage from an invited ruling is tacitly asserted in the cases which hold that a party who tenders an immaterial issue cannot successfully complain because the court tried the case upon the issue he tendered. The common-law system of pleading recognized and enforced a rule, which, in effect, was the same as that which we have here regarded as the rule interdicting parties from availing themselves of rulings produced by their own act. Although the rule of the common law was differently designated, it was in all essential particulars the rule we have been discussing, for it denied to parties benefit from erroneous rulings upon the pleadings brought about by their invitation. The rule of the common law to which we refer is that which denied the party who committed the first fault in pleading the right to complain that his adversary followed in the erroneous direction marked out by him.
In O'Neal v. Wade, 3 Ind. 410, it was held:
"The party, who by his pleading has tendered...
To continue reading
Request your trial
-
Lowry v. Fidelity-Phenix Fire Ins. Co.
...she was not, under said valued policy law and the decisions of the Supreme Gout of Kansas, notably those of Liverpool, etc., Ins. Co. v. Heckman, 64 Kan. 388, 67 P. 879, and Queen Ins. Co. v. Straughan, 70 Kan. 186, 78 P. 447, 109 Am. St. Rep. 421, required, in that event, to submit to an A......
-
Spring Garden Ins. Co. v. Amusement Syndicate Co.
... ... Company (hereinafter called the 'Amusement Company') ... property was covered by policies of insurance issued ... and delivered to the Amusement ... Union Assurance Company (Limited), of London, Eng., $2,000; ... the Western Assurance ... Liverpool, London & Globe Ins. Co., 136 U.S. 242, 10 ... Ins. Co. v. Heckman, 64 Kan. 388, 67 P. 879, ... Northwestern Mut ... ...
-
Springfield Fire & Marine Ins. Co. v. Homewood
...66 Tex. 103, 18 S.W. 337, 59 Am. Rep. 613; Williams v. Hartford Ins. Co., 54 Cal. 442, 35 Am. Rep. 77. ¶8 In Liverpool, London & Globe Ins. Co. v. Heckman, 64 Kan. 388, 67 P. 879, the court said: "The phrase 'total loss,' or its equivalent, 'wholly destroyed,' as used when applied to the su......
-
Patriotic Ins. Co. of America v. Franciscus
...This court, in St. Paul Fire & Marine Insurance Co. v. Eldracher, 33 F.(2d) 675, 681, quotes thus approvingly from Liverpool Insurance Co. v. Heckman, 64 Kan. 388, 67 P. 879: "Although some portion of the building may remain after the fire, yet if such portion cannot be reasonably used to a......