Kansas Farmers' Fire Insurance v. Saindon

52 Kan. 486 | Kan. | 1893

The opinion of the court was delivered by

HcxrtoN, C. J.:

The insurance company moved to require plaintiff below to make his petition more definite and certain, by stating specifically what answers to questions in the application, which had been transcribed on the policy, were false and not his own answers. This motion the court denied.

I. It is doubtful whether the exception of the company can be considered, because the petition in error does not specially assign this ruling as error; but, if it were considered, the reply subsequently filed cured the indefinite or defective allegations of the petition, as it set forth specifically all of the facts claimed by the plaintiff below concerning the application and the answers to the questions therein stated. All of the pleadings may be considered together, if any allegation in the petition is urged as insufficient. Therefore, if any error was committed in the ruling referred to, in view of the reply, it cannot be regarded as prejudicial.

II. Upon the trial, after the jury was impaneled, and when plaintiff below offered his first witness, objection was made to the introduction of any testimony under the petition, for the reason that it did not state facts sufficient to constitute a cause of action. The principal contention was, that the petition itself disclosed the fact that the policy did not properly describe the real estate upon which the dwelling house was situated. The land was misdescribed in the policy, but this misdescription would not affect the risk or render the policy void. (Insurance Co. v. McLanathan, 11 Kas. 533; Mumper v. Kelley, 43 id. 256; Insurance Co. v. Schrech, 43 N. W. Rep. [Neb.] 341-344; Insurance Co. v. Gebhardt, 49 id. 333.)

III. It is next contended that, as many of the answers concerning other insurance, prior incumbrances and stovepipes in the written application were untrue, the policy was rendered void thereby. It appears from the evidence, that the plaintiff below could not read nor write; that the application was signed with a mark only; that the applicant made no false statements or answers; that the application was filled in by E. D. Pelletier, who sent the same to the insurance company, and received the policy from plaintiff below. Therefore, if Pelletier was the agent of the company, and made or filled in the false answers without the knowledge or consent of the plaintiff, the company cannot avoid the payment of the loss on account of them. (Sullivan v. Insurance Co., 34 Kas. 170; Insurance Co. v. Gray, 43 id. 497.) In this connection, it is suggested that the trial court committed error in permitting plaintiff below to testify that he never signed the application. The question was not objected to, but the company moved to strike out his answer after it had been received. The execution of the application, as it was submitted to the jury, was not in issue. The court, in its instructions, treated the application as if it had been signed, and informed the jury that,

“If such agent relied on the representations of the plaintiff, if he made any, and such representations were false and deceived the agent as to the true condition of the property, whether with reference to incumbrances or otherwise, and a loss occurred, the plaintiff could not recover. But if the plaintiff stated all the answers truthfully and the agent wrote them falsely, or if the agent, by his own examination, knowledge or information of the premises, without reference to the statements of the plaintiff, if any, filled out the application,, then the company is bound thereby, whether the application was truthful and correctly filled out or not; for being the act of the company, through its agent, if not correct, the company and not the plaintiff must bear the loss.”

IV. It is further contended, that as the property insured was mortgaged during the term of the policy and before the loss, without notice to or the consent of the company, the policy by the terms thereof became void. It appears from the evidence that the subsequent mortgages were given to the officers of the bank, who held the original mortgages, and were simply renewals of or in lieu of mortgages in existence at the time the application was taken and the policy issued, with additional interest. Such renewals did not vitiate the policy, nor cause any breach of its condition. There was a conflict in the evidence whether the mortgages were renewals only, but the jury were the judges of the weight and credibility of the witnesses, and under instructions of the court have settled that matter in favor of the plaintiff below. (Bowlus v. Insurance Co., 32 N. E. Rep. 319-321; Russell v. Insurance Co., 32 N. W. Rep. 95; Russell v. Insurance Co., 42 id. 654; Insurance Ass’n v. Holberg, 8 So. Rep. 175; McNamara v. Insurance Co., 47 N. W. Rep. 288.)

V. It is also contended that Pelletier was not the agent of the insurance company, as his agency had terminated in February, 1887, before the application for the policy was taken therefore, that the trial court committed error in instructing the jury that “the company having issued its policy on the application taken by Pelletier, made him its agent for that purpose, even if he was not so before.” At one time E. I). Pelletier was the solicitor for the insurance company. After his agency terminated, he retained printed blanks of the company which had been furnished him while he was solicitor. On the back of the application filled up was indorsed: “ E. D. Pelletier, solicitor.” Pelletier requested the plaintiff to insure, fixed the amount of premium, made inquiries relative to the dwelling house, and transmitted the application to the company. The company issued the policy and paid Pelletier a commission of 25 per cent, for his services. The policy was sent to him for delivery. The acts of Pelletier in soliciting the insurance and taking the application on a blank of the company having been clearly accepted by the company, are such a ratification as is equivalent to full authority in the first instance. Having accepted Pelletier’s services as solicitor, and having paid him for the same, the insurance company cannot now disown his agency. (Babcock v. Deford, 14 Kas. 408; Waterson v. Rogers, 21 id. 529; McArthur v. Home Life Ass’n, 35 N. W. Rep. 430; Abraham v. Insurance Co., 40 Fed. Rep. 717.)

The trial court committed no error in refusing the two instructions prayed for. The first instruction omitted all reference to the false answers having been written in the application by Pelletier without the knowledge or consent of the plaintiff. The second instruction, concerning the subsequent mortgages, was faulty in not excepting renewals of prior mortgages. There are some other matters referred to in the briefs, but they do not merit discussion.

The judgment will be affirmed.

All the Justices concurring.