40 Kan. 54 | Kan. | 1888
Opinion by
This is the second time that this case has appeared in this court. On its first appearance in 34 Kas. 189, (which see for statement of facts,) it was decided that “ what are reasonable expenses incurred by the company in taking a risk, is a question of fact for the jury, and not a question of law for the court.” “And if any of such reasonable expenses are included in the ‘short rates’ they are not, in addition to the ‘ short rates/ to be retained by the company as expenses.” On the second trial the question was submitted to the jury, and they found specifically in answer to the seventh particular question submitted, that the words “short rates” in the policies of insurance issued by the company to the defendant in error, include all expenses incurred by the company in taking the risk. Of course this finding is the exasperating fact in the case, and is the real point of attack in this proceeding in error. In support of these proceedings in error it is contended:
I. That the trial court erred in overruling the application of the company for a change of venue, based on the fact that the judge had been a witness on a former trial of this cause, and had sworn that the words “ short rates and all expenses,”
II. It is contended that the court erred in permitting the witnesses Broughten, Koester, Berry and Fulton to testify as to the custom of the insurance companies they represent as agents, in the cancellation of policies, and as to the meaning of the words “short rates,” as used in policies, and as to whether the words “short rates” include all the expenses of taking the risk. They had acted for years, some longer than others, as local agents for various insurance companies, largely in taking what is called commercial or town-property risks, to a limited extent in writing farm risks. It seems to us that they were qualified to testify on these subjects, and that the court did not err in permitting them to do so. The weight to be given evidence of this character is left to the jury, but they ought to be governed by those general considerations that control the courts. The length of time a witness is engaged in the business, the amount of business transacted, and the thousand-and-one things that tend to impress those
III. The three instructions complained of were all properly refused; they sought to have the court instruct the jury that before the plaintiff could recover he must not only have paid the short rates, but in addition, all the expenses incurred by the defendant in taking the risk; when the question that the jjury were to try and determine by the decision of this court was, whether these expenses were included in the short rates ■or not. In no possible view ought these instructions to have been given.
For the error in the ruling of the court refusing to change
By the Court: It is so ordered.