Wilson v. The German-American Insurance Company

• Decision Date: 05 July 1913
• Docket Number: 18,333
• Citation: 90 Kan. 355,133 P. 715
• Parties: CHARLES M. WILSON et al., Partners, etc., Appellees, v. THE GERMAN-AMERICAN INSURANCE COMPANY, Appellant
• Court: Kansas Supreme Court

133 P. 715

90 Kan. 355

CHARLES M. WILSON et al., Partners, etc., Appellees, v. THE GERMAN-AMERICAN INSURANCE COMPANY, Appellant

No. 18,333

Supreme Court of Kansas

July 5, 1913

Decided July, 1913.

Appeal from Shawnee district court, division No. 1.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

INSURANCE--Oral Contract--Written Policy Not Completed--Company Liable. The owner of property contracted with an agent representing several insurance companies to insure property for a certain amount, but did not designate the particular company in which the insurance should be taken, and at the same time he paid the premium and arranged with the agent to hold the policy and thereafter to keep the property insured. A policy was issued in a company, which shortly afterwards was canceled and the agent then placed the insurance in another company represented by him, and that policy, too, was canceled. He then placed the insurance in the defendant company and began to write out a policy, but an interruption prevented its completion at the time and before it was finished the property was destroyed by fire. Held: (1) That the steps taken by the authorized agent of the company constituted a binding contract of insurance with the defendant; (2) that under the contract as pleaded the failure to furnish proofs of loss did not operate as a forfeiture; (3) that the action of the agent in agreeing with the property owner to hold the policy and keep his property insured was not repugnant to the duty of the agent to the defendant, nor did it affect the validity of the contract of insurance.

Z. T. Hazen, R. H. Gaw, both of Topeka, Thomas Bates, and Seymour Edgerton, both of Chicago, Ill., for the appellant.

Eugene S. Quinton, of Topeka, T. H. Stanford, and G. T. Stanford, both of Independence, for the appellees.

OPINION

JOHNSTON, C. J.:

This was an action begun by the appellees, Charles M. Wilson and P. L. Montague, as partners, to recover upon a contract of insurance between them and the appellant, the German-American Insurance Company. The facts in the case are not in dispute. Charles F. Yost was the agent of several insurance companies at Caney, among them the appellant, and was intrusted with signed policies with power to complete contracts and to fill out and deliver policies as occasion required. In 1909 the appellees owned an airdome theater, which they converted into a skating rink of steel construction with a pyroid roof. After the completion of the improvements they contracted with Yost for insurance on the building for $ 375, and on the stage equipment, picture machine and other property in the building to the amount of $ 500, without designating the company in which the insurance should be taken. The premium was paid and received, and at the same time it was arranged that Yost would place the policy in his safe and should thereafter keep the property insured. Policies were written by him on the property in two other companies which he represented, one after the other, but upon directions from each of these companies the policies issued were canceled, and then he determined to place the insurance with the appellant. After resolving to insure with appellant he began to write out the policy, but darkness intervened and he concluded to postpone the completion of the policy until the following morning. During the night the building was totally destroyed by fire, and no policy was ever delivered to appellees by appellant or its agent. After the fire Yost informed appellees of the action he had taken, but refused to complete and deliver the policy to them. At first they undertook to enforce the policies which had been issued by other companies and thereafter canceled, but finally pressed their claim against appellant to a judgment, from which an appeal has been taken.

It is first contended that the contract of insurance not being in writing is subject to the terms and conditions contained in the written policies usually and customarily issued by the appellant. One of the conditions of these policies, it is said, was that proofs of loss should be furnished within sixty days, and that no action could be maintained for a loss unless compliance with this requirement had been made. No proofs of loss were furnished by appellees and in explanation of this omission they say that it resulted from the refusal of the appellant to give them a policy from which they could learn the conditions of policies customarily issued by the appellant. Failure to make proofs of loss within a specified time, however, does not operate to forfeit the rights of the insured unless there is an express provision in the policy imposing a forfeiture for noncompliance with the requirement. (Insurance Co. v. Owens, 69 Kan. 602, 77 P. 544.) It is said that there was a provision in the policy usually issued by the appellant that no action could be maintained or recovery had until proofs of loss were made, but the condition pleaded in the answer upon which the case was tried does not provide for a forfeiture of any kind. In the form of policy introduced in testimony a forfeiture clause is written, but the case must be considered...