German Fire Insurance v. Bullene, Moore, Emery & Co., 51 Kan. 764

German Fire Insurance v. Bullene, Moore, Emery & Co.

51 Kan. 764 | Kan. | 1893

The opinion of the court was delivered by

Allen, J.:

deemed begim. 2' lowed.1"01" The first question presented is, whether the claims of the Exchange Bank of Lenora, Barton Bros, and Turner & Jay are barred by the limitation in the policy providing that any suit brought on it must be commenced within six months after loss. It will be observed that the parties named were not made parties to the action by the plaintiff until May 10, 1888, when the amended petition was filed, and they did not answer until the 6th of August, 1888. Their first attempt to enforce their demands against the insurance company by means of this action was at the date of filing their answers and cross petitions herein. (Toby v. Allen, 3 Kas. 399.) More than a year had then expired after the date of the fire. Provisions substantially like the one contained in this policy, restricting the right to commence an action thereon to a short period after loss, have been sustained by this court. (McElroy v. Insurance Co., 48 Kas. 200; Insurance Co. v. Stoffels, 48 id. 205.) Within these authorities, the cross demands of these defendants were barred by the provisions of the policy. This leaves us, then, with the plaintiff’s claim alone to consider. It is contended that the policy was avoided by the taking out of other insurance, in violation of the terms of the policy. The body of the policy contains the usual provision against other insurance without ■ the consent of the company, but attached to the policy there was what is termed a three-fourths-value clause, *774which appears to be attached only to certain classes of policies, and contains this provision:

“It is part of the consideration of this policy, and the basis upon which the rate of premium is fixed, that, in event of loss, this company shall not be liable for an amount greater than three-fourths of the actual value of the property covered by this policy at the time of such loss; and, in case of other insurance, whether policies are concurrent or not, then for only its pro rata proportion of such three-fourths value. Total insurance permitted is hereby limited to only three-fourths of the cash value of the property hereby covered, and to be concurrent herewith.”

We think this a consent that other insurance, not exceeding in all three-fourths of the cash value of the property, might be taken out, and, within the finding of the court, the total insurance appears not to have exceeded that sum.

The next question we are called on to consider is, whether a cause of action can be split up and separate actions thereon maintained, as attempted to be done in this instance. It appears that the defendant company was subjected to four separate suits by different plaintiffs, each seeking to recover a portion of the policy. As originally instituted, this, and each of the other actions, were suits at law on the policy to recover separate sums. In this action, however, after a demurrer to the original petition had been sustained, the plaintiffs, by amendment, sought to convert their case into an equitable action, in which the rights of all of the parties to the fund might be determined, and, so far as the record discloses, the other suits were at the time this case was tried still pending. The statement made by the judge at the opening of the trial, that he dismissed the other three cases on his own motion, where such action was excepted to, not only by the insurance company but by each of the other defendants, cannot be treated as an order of dismissal. The court was not then hearing those cases, and a mere declaration from the bench, of the kind contained in the .record, would not preclude the district judge when those cases were reached in their order from reconsidering that statement, and from holding the cases *775for trial. The orders of courts disposing of cases must be proven by entries on the journal, and not by oral declarations, such as are contained in this record; and, in the absence of any statement or admission that the eases were formally dismissed, we must presume that they were still pending.

s cause of not to be1'611 spntup. It is a very general rule that a creditor cannot, by assignment or in any other manner, split up his cause of action, and thereby subject the debtor to a multiplicity of suits, or conflicting demands upon him. (Mandeville Welch, 5 Wheat. 277; Insurance Co. v. Davenport, 37 Mich. 609; Insurance Co. v. Felrath, 77 Ala. 194; Thatch v. Metropole Ins. Co., 11 Fed. Rep. 29; Stearns v. Insurance Co., 124 Mass. 64; Whitaker v. Hawley, 30 Kas. 326.) If we could say from the record brought here that this case alone was pending against the insurance company, and that all of the parties in any manner interested in the policy were before the court, so that the rights of each and all of them could be fully determined, it might be that the plaintiff’s judgment could be upheld. It appears that no service has ever been obtained on Mrs. Lappin, and her right to the balance of the policy could not therefore be determined in this case. Pratt & Kelly disclaim any interest in the policy. In view of the fact that three other cases commenced by the defendants in precisely the same manner that this case was commenced were still pending in the Norton county district court at the time this case was tried, it would seem that similar amendments might have been made in each one of those three cases, and if the plaintiffs were made defendants in one of those cases, and an answer made setting up their claims in one of those actions, within the rule above declared, their cause of action when presented by such answer would be barred by the limitation contained in the policy. Of course, each of these parties would seek to enforce its respective demands, and, as each would be barred in any other action than the one originally commenced by it, would be likely to insist on pursuing their respective remedies. As to three of these cases *776there is nothing in the record to indicate which has priority in point of time of commencement. It may be, also, that where each sues on his own account, without making the others parties, that, inasmuch as their petitions are defective, no advantage could be gained by priority in time of commencement. We cannot in this action hold that the claims of the Exchange Bank, Barton Bros., and Turner & Jay, in the actions commenced by them, are barred, with any greater force of reasoning than that the plaintiffs’ action in this case is barred, and we must hold, within the authorities cited, that the insurance company cannot be subjected to four separate suits by a splitting up of the cause of action against it, as was attempted to be done in this instance.

Counsel for defendants in error lay much stress on the point that the assignment of the policy of insurance was signed by Crum, local agent of the insurance company at Lenora, and claim that the assignment was an agreement binding the company to pay the several sums therein mentioned to the assignees. It may be conceded that Crum, for the purpose of issuing policies of insurance, and of matters connected therewith, was the general agent of the insurance company, but the record wholly fails to show that adjustment or payment of losses was within the line of his duties. While an insurance company might, of course, intrust the adjustment and payment of a loss to the same agent who issued the policy, that is not the usual mode of transacting insurance business. The settlement of losses is usually intrusted to a different class of agents, commonly styled adjusters, and in this case the company was represented by its general agent and adjuster, Robinson, who examined into the facts connected with the loss and took the proofs. In the absence of any evidence tending to show, either that Crum had express authority to consent to this assignment, or that he had some general authority with reference to the liabilities of the company after losses had occurred, we cannot presume that he had power to bind the company by consenting to this assignment.

*777Various other matters are discussed iu the briefs, but we deem it unnecessary to specially mention them.

The judgment is reversed.

All the Justices concurring.