The Piscatauqua Savings Bank v. The Traders' Insurance Company of Chicago

• Decision Date: 01 December 1898
• Docket Number: 488
• Citation: 8 Kan.App. 241,55 P. 496
• Parties: THE PISCATAUQUA SAVINGS BANK v. THE TRADERS' INSURANCE COMPANY OF CHICAGO, ILLINOIS
• Court: Kansas Court of Appeals

55 P. 496

8 Kan.App. 241

THE PISCATAUQUA SAVINGS BANK v. THE TRADERS' INSURANCE COMPANY OF CHICAGO, ILLINOIS

No. 488

Court of Appeals of Kansas, Northern Department

December 1, 1898

Opinion Filed December 15, 1898.

Error from Wyandotte district court; HENRY L. ALDEN, judge. Affirmed.

Judgment affirmed.

Cook & Gossett, for plaintiff in error.

Fyke Yates & Fyke, and Scroggs & McFadden, for defendant in error.

OPINION

MCELROY, J.:

This was an action on a policy of insurance issued by the defendant company on the 2d day of December, 1893, insuring the plaintiff for a term of three years against loss by fire on a dwelling-house in Kansas City. The plaintiff alleged the issuance and delivery of the policy of insurance and the destruction of the property by fire; that the plaintiff gave immediate notice of the loss to the defendant insurance company; that the defendant, by its duly authorized general agent, M. E. Lease, denied its liability for the loss for reasons other than a want of notice and proofs of loss; and that the defendant waived the giving of written notice of the loss and proofs of loss as required by the terms of the policy; and the plaintiff prayed judgment for $ 1500, with interest and costs of suit.

The defendant insurance company filed an answer: (1) A general denial; (2) admitting the execution and delivery of the policy; (3) alleging that the policy provided that "if the building become vacant or unoccupied for more than ten days . . . before a loss, then and in every such case this entire policy shall . . . become absolutely void," and alleging that more than ten days before the destruction of the property by fire the building became vacant and unoccupied and so remained until it was destroyed, without the knowledge or consent of the company, and that the policy thereby became void; (4) alleging that by the provisions of the policy the plaintiff was required to deliver to the defendant company verified proofs of loss, duly certified by a magistrate, within thirty days after loss, and denying that such proofs so certified had been furnished. The company therefore denied its liability. The plaintiff's reply was a general denial. A trial was had before the court and a jury, which resulted in a verdict for defendant. The plaintiff filed a motion for a new trial, which was overruled, and presents the case to this court for review.

The plaintiff in error sets out eighteen formal assignments of error. The issuance and delivery of the policy of insurance were admitted in the answer. The defendant admitted at the trial that the building was totally destroyed by fire on the 14th day of December, 1895; that defendant had notice of the loss, and that M. E. Lease was the adjuster for the defendant company. The only defense presented was that the building insured had become vacant and unoccupied and so remained for a period of more than ten days prior to its destruction, without the knowledge or consent of the insurance company.

The assignments of error, from 1 to 7, inclusive, are without merit. We will say, however, that the court erred in admitting...