59 Kan. 432 | Kan. | 1898
The plaintiff in error, through the negligent condition and operation of one of its engines, set fire to the property of one Daniel Lane, damaging him to the amount of $7875. The property was insured by the defend ant in error, and it and the owner adjusted its liability under the insurance contract at $4875, but it did not immediately pay the amount. The plaintiff in error and the owner of the property adjusted his loss, over and above the amount covered by the insurance, at three thousand dollars. In the settlement with the plaintiff in error, the fact of insurance upon the property and the amount at which the Insurance Company’s liability had been adjusted were taken into account. Payment of the three thousand dollars was made by the plaintiff in error, and a receipt in full and release of damages was executed to it, conditioned to take effect upon payment of the sum due from the Insurance Company. This condition was inserted in the receipt and release, and was in the following language : “ This settlement based on fact of adjustment already had by insurance company at $4875 ; company not released until adjustment is paid in full. ”
This sum was presently paid in full by the defendant in error. It thereupon brought suit against the plaintiff in error to recover the amount so paid. A verdict and findings were returned in its favor and judgment rendered thereon, from which error is prosecuted to this court.
When insured property has been destroyed or damaged by fire occasioned by the negligent act of another than the owner, and the insurer has paid to the
' Inasmuch as in this case the loss exceeded the amount of the insurance, the plaintiff in error, upon the theory of the indivisibility of actions for tort, and of the trusteeship of the assured, contends that the
If, by the terms of the settlement, a right of action for the unpaid balance of damages was reserved to the owner, that right of action, upon the principle of subrogation before adverted to, passed to the defendant in error, the Home Insurance Company, upon the payment by it of the amount of its liability. That amount had been agreed upon between the insurer and the assured. The' plaintiff in error, at the time it made its partial payment, knew of the agreement between the owner and the insurer. The plaintiff in error knew that a right of action had been reserved, not only against itself, but against the insurer, for the unpaid amount. Its settlement was predicated upon the idea, in point of fact, of a payment by it of such portion of the loss as the Insurance Company was not liable for,
Other claims of error are made. They are that the evidence failed to show responsibility in the plaintiff in error for the fire in question ; that the answers to some of the special questions were contrary to the evidence and were conflicting and inconsistent between themselves ; that, under the pleadings, the defendant in error was required to prove its authority to transact insurance business in the State and that it failed to do so ; that the court erroneously instructed the jury in several particulars, and erroneously refused to give certain instructions asked. We have carefully examined these claims of error. All of them are unfounded.
It is also said that the court ewed in the admission of evidence. Citations are made to the record where it is said this erroneous evidence can be found, but no statement is made of the character of any of it, and no attempt made to point out wherein its admission was erroneous. We are not under obligations to consider the points upon which the plaintiff in error has seen fit to furnish us with such meager information.
The judgment of the court below is affirmed.