41 Kan. 161 | Kan. | 1889
Opinion by
Action to recover on an insurance policy of $1,000, on a steam elevator at Bennington, Ottawa
“During the whole of the month of September, 1886, W. B. Simmons and W. L. Cole, partners under the firm-name of Simmons & Cole, were the duly-authorized agents of the defendant at Bennington, Kansas, for the purpose of taking applications and issuing policies of insurance for the defendant, and as such agents they had full authority to take the written application mentioned in the defendant’s answer herein, and to issue the policy of insurance set forth in the plaintiff’s petition herein. The said application was taken by said agents for the said defendant on the 20th day of September, 1886, and was written and prepared entirely by them, except the signature of the plaintiffs thereto, and at the time said application was being so written and prepared and in answer to the questions therein contained, said plaintiff gave to said agents a full and correct account and statement of the title to the land upon which said elevator stood, and fully and correctly informed said agents that a part of said elevator stood on land leased from the Solomon Railroad Company, being a part of its right-of-way; and that at the time said application was so made, and before the same was signed by the plaintiffs, said agents had full knowledge of all the facts concerning the titles to the land upon which said elevator was located. In consideration for the issuance of said policy, and at its date, the said plaintiffs paid to the said defendant the sum of $35, and then executed and delivered to said defendant their promissory note for $175, payable by installments to said defendant at any time or times as the board of directors of said defendant might order. The said plaintiffs were the owners of the property described in said policy of insurance at the time of its insurance, and at the time said*163 property was destroyed by fire. On the 5th day of November, 1886, the property described in said policy of insurance was totally destroyed by fire. On the 22d day of December, 1886, the said plaintiffs furnished the defendants with proof of said loss, and have otherwise performed all the conditions of said policy on their part. At the time said application was taken and said policy was issued, the property therein insured by the defendant was also insured in another company for the sum of $2,000, which fact was fully set forth in said application. The property described in said policy and insured thereby was at the time of its destruction by fire as aforesaid of the value of $2,783.32, and the amount and value of the loss under said policy was $931.06, which defendant should pay to plaintiffs.”
The assignments of error are, that the findings are not supported by sufficient evidence; that they do not authorize the conclusions of law;. that improper testimony was admitted • and that the motion for a new trial was improperly overruled. All the findings of fact are supported by the evidence; that of the agency of Simmons & Cole is clearly established; their knowledge that a part of the elevator was situated on the right-of-way of the railroad company is sufficiently established ; and the weight of the evidence considered in connection with [all the circumstances is, that the insured answered the controlling question in the affirmative, by the advice of the agents of the company. They wrote the application, filled in all the blanks, and all the insured did was to write the signature.
The pivotal question under this state of facts is, whether or not the insurance company is not estopped from denying the truth of the statement contained in the application concerning the title to the property; The leading case in this state upon this question is that of American Cent. Ins. Co. v. McLanathan, 11 Kas. 533, and in this particular feature is very similar to the one we are considering. There the agent knew that the title to the lots was in the wife of the applicant, but said it did not make any difference. Here the agents knew that a part of the elevator was on the ground of the railroad company, but advised the applicant to answer that he was the
It is said by the court in Sullivan v. Phenix Ins. Co., that the current of judicial authority in this country is in favor of this declaration. Applying this principle to the facts found, there can be no other legal conclusion than that the company is liable on the policy for the loss.
The learned counsel for the plaintiff in error makes a vigorous and ingenious argument, trying to show that this principle is not applicable in this case because the plaintiff in error is a mutual insurance company organized under chapter 132, laws of 1885. He claims that as under this law each policyholder becomes a member of the company, he is thereby charged with notice of its by-laws and policies, which must be approved in form, by the attorney general of the state, and that each member also must be held to have had knowledge of the extent of the power of every agent. This may all be true, and yet not vary the rule announced. The counsel would not certainly claim that the mere act of application for a policy would make the applicant a member of the company. If he is made a member, it is not until a policy is issued and delivered to him. He is claiming in this case, that the act of the applicant in misrepresenting the condition of the property avoids the policy. He claims he is a member, because he has a policy, and yet that the policy is void. He cannot be permitted to blow hot and cold in this manner. So far as the question we are considering is concerned, it is not affected in any way by his action as a member of the mutual company, if he has become one. The main strength of his argument, however, is derived from those provisions of
There is no reversible error. We recommend an affirmance of the judgment.
By the Court: It is so ordered.