22 P.2d 431 | Kan. | 1933
The opinion of the court was delivered by
This is an action to recover for a fire loss. The controverted question was whether a contract of insurance had been effected. The jury found for plaintiff. Defendant has appealed.
Plaintiff, who lives in the country a few miles from Sabetha, desired to insure his household goods against loss by fire. About October 25, 1931, he went to S. G. Potter, of Sabetha, who was the agent of the defendant company, and executed an application for insurance in the defendant company against loss by fire on his household goods in the sum of $300. He paid the premium demanded, $2.25 in cash, and executed to defendant his nonnegotiable note for $7.50. The application fixed the time when the policy should go into effect as noon of the next day, as plaintiff testified, although there was some controversy on that point. Potter, as agent for defendant, executed to plaintiff a receipt for the application and the premium paid by cash and by note, which receipt recited, among other things, “All to be refunded if policy is not issued.” About two weeks later Mr. Potter went to plaintiff’s home and asked his wife for a list of the property, but said nothing about whether the application for insurance had been accepted or rejected. Plaintiff was not at home and did not see Potter on that occasion. On December 23, 1931, plaintiff’s home and household goods burned. The loss was total. The next day plaintiff reported the loss
Appellant contends that the facts pleaded and proved are insufficient to establish a valid contract of insurance. It is argued that the mere failure of an insurance company to notify the applicant of the rejection of his application does not result in the creation of a binding contract of insurance, citing Northwestern Mutual Life Ins. Co. v. Neafus, 145 Ky. 563, 140 S. W. 1026; Dorman v. Connecticut Fire Ins. Co., 41 Okla. 509, 139 Pac. 262; Richmond v. Insurance Co., 123 Tenn. 307, 130 S. W. 790; 26 C. J. 54; 14 R. C. L. 896, and allied authorities. This argument overlooks the provision of the receipt given to plaintiff at the time he made the application and paid the premium, partly in cash and partly by note. That receipt contained the positive agreement that the application; cash payment and note would be returned to plain
The judgment of the court below is affirmed.