11 Kan. 533 | Kan. | 1873
The opinion of the court was delivered by
•“We, the jury, find as follows: 1st.-That the dwelling-house described in the policy of insurance, was built by the plaintiff in the year 1859, on lots which had before that time been conveyed to Lucy B. McLanathan, wife of plaintiff, and the fee-simple title to which lots was then in the said Lucy B. McLanathan, also continued up to and including the date of the fire hereinafter mentioned. Said dwelling-house rested upon a stone foundation, built with mortar, and entering the ground at least a foot and-a-half.
“2d. — That at the time the said policy of insurance was made, the plaintiff applied to Daniel R. Anthony, who was the duly authorized agent of the defendant to issue policies of insurance, for a policy of insurance on said house, and that the said agent having made out this policy, the plaintiff informed him that the lots on which the house was situated were deeded to the wife of the plaintiff, but that he (the plaintiff) had built the house; and the said Anthony then stated to plaintiff that it would make no difference whether the policy was made to him or his wife, whereupon the plaintiff paid his insurance-money and took the policy.
“ 3d.-That the plaintiff with his family had occupied said house from the time it was built till the time of the fire herein referred to, and the said Anthony, the agent of the defendant, knew the facts as to the title to said property at the time he made said contract of insurance.
“4th.-That as to all interest, legal or equitable, in said house, owned by the said Lucy B. McLanathan, the said plaintiff, in making said contract of insurance, made the same for, and in behalf of him and wife, and took said policy of insurance to himself for the benefit of himself and wife, the said McLanathan then acting in the procuring of said policy for himself, and as the agent of his said wife.
“5th.-That on the 29th of January 1872, said house accidentally took fire, and a part thereof was destroyed by fire, and the building greatly damaged both by fire, and. the efforts to extinguish the same, without fault of the plaintiff.
“ 6th.-The plaintiff immediately notified the agent of said loss, and the agent of the defendant (Mr. Mosier) told the*545 plaintiff that it was unnecessary to furnish proofs of the loss, because the defendant had elected to repair the building. On the 28th of February 1872, the defendant served on the plaintiff another notice, of which the following is a copy:
‘Leavenworth, Kansas, Feb. 28, 1872.
H. L. S. McLanathan, Esq,., Leavenworth, Kansas:
Sir: You are hereby notified of the determination of the American Central Insurance Company, of St. Louis, Mo., to repair your late residence, situated in the southwest corner of Second and Elm streets, Leavenworth, Kansas, which was on or about the 29th of January, 1872, damaged by fire and water, and that the said company will commence the said repairs immediately on the receipt of proper proofs of loss, as per your policy of insurance in said company, on said building. Yours very truly,
Dave Korick,
Special Agent Am. Gen. Ins. Go., St. Louis’
“ 7th. — That on the 7th of March 1872, the plaintiff delivered to defendant the notice and proof of loss, of which copies are inserted in the answer of defendant, to which proofs no objection was made by the defendant at any time.
“ 8th. — That after the expiration of one month from the date of delivery of said proofs of loss, said defendant, having failed to make any objections thereto, or to repair said building, informed the plaintiff that said defendant would not repair said loss; and thereupon said plaintiff made a portion of the necessary repairs and took possession of said house.
“ 9th.-That the plaintiff in making his proof of loss did not intend to defraud defendant.
“ 10th. — That the foundation of the kitchen attached to said house was moved by plaintiff onto the west side of said house on the 4th of March 1872, the defendant agreeing thereto on plaintiff’s paying the cost of said removal and whatever additional sum it might cost to make the repairs by reason of the location of said kitchen on the west side of said house.
“ 11th. — That the agent of defendant, in making the policy made a mistake in describing the location of the building, as at the southwest corner of Vine and Second streets, instead of at the southwest corner of Elm and Second streets.
“12th.-That there was at the date of said insurance policy a street in said city called Vine street, and a street called Second street, and the street called Elm street, and that the agent of the defendant, at the time of the execution of the policy knew that the dwelling-house aforesaid was located on the southwest corner of Elm and Second streets, said Vine street being one street north of Elm.
“ 13th. — That at the time of the execution of the said policy*546 there was erected on the southwest corner of Second and Vine streets a frame dwelling-house, the north part of which was two stories in height, the upper story being a half-story, but the south part of same was one story, and that there was also then, in the rear of said dwelling-house, a barn or stable, and that neither of which last-named dwelling or barn was injured by fire.
“ 14th.-That the dwelling described in said policy is and was the same which is now, and was occupied by the plaintiff and his family, and was then and now, situated on the southwest corner of Second and Elm streets.
“ 15th.-That the injury to said dwelling-house by said fire, and the amount it then would have cost to repair the same was $1,600.
“16th .-That at the time said defendant informed said plaintiff that said defendant would not repair said house, the injury to the same, by reason of the action of the weather thereon, and the additional amount it would cost to repair the same, in consequence of such exposure to the weather, was $400.
“On the above facts, we the jury assess the plaintiff’s damages at two thousand dollars, as follows: By fire, $1,600 damages; by exposure to weather, $400 damages. Total amount, $2,000. Jas. Bauserman, Foreman.”
Upon this special verdict judgment was entered in favor of McLanathan for $2,000, and the insurance company now brings the case here on error. A lengthy and elaborate brief has been filed by the learned counsel for plaintiff in error, and many questions presented and discussed in it. We shall not be able to notice many of these in detail, nor will it be necessary, as the determination'of two or three will decide the ease, the principles involved in those controlling the remainder.
Many objections were made during the trial to the admission of evidence, and the rulings thereon are now assigned for error. Complaint is made of the manner of preparing the special verdict, of the remarks of the court to the jury, and of the refusal to give certain instructions. It is enough to say in reference to these various matters that we see no error working substantial injury to the rights of the plaintiff in error.
The judgment of the district court will therefore be-affirmed.
[*Substance-of “answer,” and “reply,”post. p. 552.]