German Insurance v. Smelker, 38 Kan. 285

German Insurance v. Smelker

38 Kan. 285 | Kan. | 1888

Opinion by

Simpson, C.:

The special findings of the jury are conclusive here. This has been expressed so often that its repetition has become wearisome, and hence, the only ques*287tion we shall consider is, whether they authorized the judgment rendered. They are in substance, that the policy in case of loss was to be paid to Matthewson as trustee; that he had received from other insurance companies and from the plaintiffs a sufficient amount of money to pay the loan secured by the mortgage; that the German Insurance Company paid the amount of money due by the adjustment for the loss on the policy as purchase-money for the bond and mortgage, through their agent F. E. Hoffman, who took an assignment of the bond and mortgage and is seeking to enforce the same in this action, and claims to hold said bond and mortgage; but he paid for them out of the money of the insurance company whose agent he was in the transaction; that the defendants in error have not received any payment on account of said loss; that the draft offered in evidence was not sent to them; that the draft was indorsed by Smelker in compliance with instructions sent by the company to its local agent, so that he could get the money on the draft and send it to Matthewson as trustee; that Gill, the local agent, acted for the company.

These findings are said to be contradictory, and not supported by sufficient evidence. As to the latter objection, we have examined the evidence presented in the record enough to know that there is some evidence to sustain them, and this is all that is required. We shall not weigh the evidence to determine whether the findings are supported by more evidence ■ than was produced on the other side. The trial court has performed that duty, and approved them. We do not think that they are contradictory in the sense that there are adverse findings on the same state of facts. It may have been a difficult duty for the jury to determine at what particular periodical juncture Gill ceased to become the agent of the insurance company, and assumed that relation towards the defendants in error, but the record shows accomplishment by the jury, and approval by the trial judge. Nor do we think that the jury have made a finding on any one of the special interrogatories submitted to them, which neutralizes or destroys the legal effect of any other - finding. The sole question remaining is, whether the judgment is right on the findings. It is *288said by counsel on both sides that the concurrence of three propositions entitled the plaintiffs below to the relief sought, and they are: First, it was the duty of the German Insurance Company to pay the amount of the loss to the mortgagee; second, that as a matter of fact the insurance company did pay the loss to the mortgagee; third, that instead of paying this loss in satisfaction of the bond and mortgage, it took an assignment thereof, and is now seeking to enforce them.

About the first proposition there is no controversy; it was the duty of the German Insurance Company to pay for the loss occasioned by the fire, and, as long as the bond and mortgage were outstanding and unpaid, to Matthewson, as a clause in the policy required. If at the time of the adjustment of the loss it had appeared that the bond and mortgage to Matthewson as trustee had been paid, then it should have been paid to the mortgagors, the insured.

The jury found specially that Matthewson as trustee had received from this and other companies a sum of money sufficient to pay off the bond and mortgage. They found in substance that the payment by Hoffman was as agent of the company, and with its funds; and if this is so, it authorizes the legal conclusion that the payment was in satisfaction of the note and mortgage, and not for the purposes of an assignment. In other words, the insurance company had obligated itself to pay the loss to the mortgagee; it did so, but instead of discharging'the mortgage, it took an assignment of it and sought to enforce it. There can be no doubt but that the legal conclusion irresistibly follows the findings of the jury. Of course, the real quarrel in this case is with the facts as found by the jury. These are beyond our control, and very largely exempt from- our criticism. Special questions the same in substance have been submitted to two juries, and like answers returned, and the general equities of the case are with the defendants in error.

We recommend that the judgment be affirmed.

By the Court: It is so ordered.

All the Justices concurring.