The Shawnee Fire Insurance Company v. Bayha

• Decision Date: 01 December 1898
• Docket Number: 417
• Parties: THE SHAWNEE FIRE INSURANCE COMPANY v. JOHN BAYHA, DANIEL C. LIST, WARREN B. SEXTON, AND M. P. SEXTON, Partners as Merriam Park Lodge Company
• Court: Kansas Court of Appeals

55 P. 474

8 Kan.App. 169

THE SHAWNEE FIRE INSURANCE COMPANY v. JOHN BAYHA, DANIEL C. LIST, WARREN B. SEXTON, AND M. P. SEXTON, Partners as Merriam Park Lodge Company

No. 417

Court of Appeals of Kansas, Northern Department

December 1, 1898

Opinion Filed December 15, 1898.

Error from Johnson district court; JOHN T. BURRIS, judge. Affirmed.

STATEMENT.

JOHN BAYHA, Daniel C. List, Warren B. Sexton, and M. P. Sexton, as copartners under the firm name of Merriam Park Lodge Company sued the Shawnee Fire Insurance Company on a policy issued to them on their sanitarium building at Merriam park, making the Missouri Savings Association a codefendant with the insurance company. The policy was for $ 1000, and contained this mortgage clause:

"Loss or damage, if any, under this policy shall be payable to Missouri Savings Association, mortgagee (or trustee), as interest may appear, and this insurance as to the interest of the mortgagee (or trustee) only therein, shall not be invalidated by any act or neglect of the mortgagor or owner of the within-described premises, nor by any foreclosure or other proceedings or notice of sale relating to the property nor by any change in the title or ownership of the property nor by the occupation of the premises for purposes more hazardous than are permitted by this policy; provided, that in case the mortgagor or owner, or their agents, shall neglect to pay any premium due upon this policy, the mortgagee (or trustee) shall, on demand, pay the same provided, also, that the mortgagee (or trustee) shall notify this company of any change of ownership or occupancy, or of increase of hazard, which shall come to the knowledge of said mortgagee (or trustee), and, unless permitted by this policy, it shall be noted thereon and the mortgagee (or trustee) shall, on demand, pay the premium for such increased hazard for the term of the use thereof; otherwise this policy shall be null and void. This company reserves the right to cancel this policy at any time as provided by its terms, but in such case this policy shall continue in force for the benefit only of the mortgagee (or trustee) for ten days after notice to the mortgagee (or trustee) of such cancelation and shall then cease; and this company shall have the right, on like notice, to cancel this agreement. . . ."

The mortgage which was set out in the answer of the insurance company contained a clause by which the plaintiffs bound themselves to cause the property to be insured for the benefit of the savings association in the sum of $ 3000, and to keep so much insurance by policies to be delivered to them, providing that any loss under said policies should be payable to that company as its interests might appear. The policy sued on was issued by the agents of the defendant company to take the place of a policy formerly procured and issued by the same agents in the Home Insurance Company, on notice being given by the latter company that it desired to cancel its policy. All of this insurance was procured by a broker, W. B. Johnson, and the notice of cancelation was likewise given to him by the agents of the Home Insurance Company, who were likewise agents for the defendant company. In the petition of the plaintiff the policy is set forth at large, with the mortgage clause attached, and an allegation is made therein that the mortgage had been fully paid by the plaintiffs. The plaintiffs had judgment for the full amount of the policy and interest, to wit, $ 1042.50, and an attorney's fee of $ 150, as provided by the statute in such cases. There are four assignments of error, as follows: (1) In overruling defendants' demurrer to plaintiffs' evidence; (2) in refusing instructions requested by the defendant insurance company; (3) in allowing an attorney's fee; (4) in denying a motion for a new trial.

Judgment affirmed.

David W. Mulvane, for plaintiff in error.

Robinson & Carkener, and Scroggs & McFadden, for defendants in error.

MAHAN P. J. MCELROY, J., concurring. WELLS, J. dissenting.

OPINION

MAHAN, P. J.:

Counsel for plaintiff in error contend in their first assignment that the policy never was in force; and further, that if it ever was in force the right to recover thereon was barred by the contract contained in the policy limiting the time within which action might be brought thereon to six months after the fire occurred. The evidence clearly discloses the fact that the policy was executed and delivered to the broker of the plaintiffs and the premium therefor paid. But counsel contend that, having been issued to take the place of a former policy issued by the Home Insurance Company, it would not take effect until that policy was canceled, and that that policy was not legally canceled because Johnson was not the agent of the plaintiffs for the purpose of receiving such notice of cancelation, and no notice was ever given to the Missouri Savings Association the mortgagee. Under the evidence, there is no question but that Johnson had full charge of all of the matters pertaining to the...