110 Kan. 458 | Kan. | 1922
Lead Opinion
The opinion of the court was delivered by
The plaintiff recovered judgment against the defendant on an insurance policy covering four stacks of wheat.
The wheat had been grown on land belonging to W. H. Smith and wife. Those persons, desiring to go to California, made a contract with plaintiff that he should harvest, stack, thresh and sell two-thirds of the crop for their benefit, and that he should have one-third of the crop for these services. After harvest plaintiff obtained from defendant a policy of fire insurance covering the stacked grain. No mention of the two-thirds interest of the Smiths was made in the insurance contract. It was shown, however, by oral testimony that plaintiff explained to the defendant’s local soliciting agent that he only owned one-third of the wheat, and that the Smiths had left it to him to decide whether their interest should be insured or not, and that the agent had told him that the minimum insurance charge was $3, which would be sufficient to insure not only the value of plaintiff’s interest in the wheat, $200, but also to insure the interest of the Smiths, $400, so the policy was1 written for $600.
When the property burned and the defendant’s adjuster learned that the plaintiff’s interest was only one-third, he told plaintiff that since his interest in the property had not been truly and correctly stated in his written application for insurance he was not entitled to anything, and that he laid himself liable to criminal prosecution if he attempted to collect on the policy. However, the adjuster offered to settle in full for plaintiff’s share of the loss, $200, and plaintiff agreed to accept this sum, but when the defendant’s check for the agreed amount was mailed to him he returned it, and brought suit for the entire sum named' in the policy, $600.
Judgment was entered in plaintiff’s favor, and defendant appeals. The first error assigned is based on the proposition that defendant
A majority of this court disapprove this contention, and hold that since the defendant’s agent was apprised of all the facts and induced the plaintiff to enter into the contract of insurance for the benefit of all concerned, he can maintain the action for the benefit of the Smiths as well as himself. (Civ. Code, §27; Shellberg v. McMahon, 98 Kan. 46, syl. ¶ 2, 157 Pac. 268.)
It is next urged that the. settlement was binding and that no fraud was established which vitiated that settlement. The jury made specific findings of fraud, which consisted of the statements of the adjuster narrated above, but these findings need not be considered since there was no consideration for the settlement. Defendant had agreed to pay $600 if the wheat stacks were burned. When this happened there was a liability of $600, and there was no consideration for its diminution nor for the agreement to accept $200 in satisfaction thereof. Therefore the settlement was not binding.
The third error assigned relates to the admission of evidence touching plaintiff’s conversations with defendant’s agent who solicited the insurance contract, but as the particular testimony objected to is not indicated in the brief of counsel, it cannot be considered.
More serious than any of the- foregoing, however, are the defendant’s objections to the instructions given to the jury. One of these reads:
“11. You are instructed that if, at the time of the making of the insurance policy herein sued upon, the defendant was informed and knew that the plaintiff was the owner of only one-third interest in the property covered by the’insurance, and with that knowledge issued to him said policy, covering the whole of said property, and accepted the premium for the issuance of said policy, then in that event, in case of a loss by fire, the plaintiff would be entitled to recover the whole of the insurance up to the full value of the property insured.”
This instruction is incorrect. No matter what plaintiff told the insurance solicitor touching the extent of his interest, or touching the extent of the Smiths’ interest, public policy would not allow the plaintiff to recover for himself a greater sum than the value of his
Reversed, and remanded for a new trial.
Dissenting Opinion
dissent, holding that plaintiff could not maintain the action as the real party in interest under section 25 of the civil code, nór in a representative capacity under section 27; that plaintiff’s only proper recovery was for the amount of his own loss, and as this had been tendered in full without litigation the plaintiff should be charged with the costs of the action; and that since there was no allegation and no satisfactory proof that the action was maintained for the benefit of the Smiths, that phase of the action should have been dismissed.