96 Kan. 752 | Kan. | 1915
The opinion of the court was delivered by
This is an appeal from a ruling of the trial court sustaining defendants’ objections to the introduction of evidence under the petition.' Plaintiff alleged, substantially, that in June, 1912, defendant Zima solicited him to procure insurance, aggregating $1150, upon plaintiff’s barn, which he was then erecting, and its contents; that plaintiff
On an objection to the introduction of evidence that a cause of action is not stated in the petition its averments are to be liberally construed. (Weber v. A. T. & S. F. Rld. Co., 54 Kan. 389, 38 Pac. 569; Howard v. Carter, 71 Kan. 85, 80 Pac. 61; Simmonds v. Richards, 74 Kan. 311, 86 Pac. 452.) This action was not brought to recover upon a contract of insurance against the insurer, but is an action against the defendants for the failure to procure insurance on his property as they had undertaken to do, and for wrongfully representing that insurance had been procured when in fact it had not, as a result of which a considerable loss had been sustained. A broker or agent who undertakes to procure insurance for another is bound to exercise reasonable diligence to obtain insurance in accordance with his agreement and to notify his principal if he is unable to do so. According to the averments of the petition the defendants failed to perform this duty, and, as has been alleged, Zima deliberately deceived the plaintiff by giving him assurance that the property had been insured when he knew that no insurance had been procured. If defendants had informed plaintiff of the omission or failure he could have obtained insurance elsewhere and have provided against loss. It does hot appear that a particular insurer was named, but it was agreed that insurance should be obtained in a responsible company. If defendants had failed to exercise reasonable care in the selection of an insurer and had placed the insurance with a company that was insolvent or one not authorized to insure, and subsequently the property had been destroyed and the plaintiff had been unable to realize on the policy, the defendants would have been liable. (Latham v. Harrod, 71 Kan. 565, 81 Pac. 214; Harrod v. Latham, 77 Kan. 466, 94 Pac. 11.) Brokers are equally liable where they undertake to procure
There is a contention that a completed and enforceable agreement was not made by the defendants, in support of which Mooney v. Merriam, 77 Kan. 305, 94 Pac. 263, is cited. That case was determined upon the evidence submitted and not upon an objection to the introduction of any evidence. The arrangement between the parties there was held to be so indefinite that it did not constitute a binding contract. In that case no agreement was reached as to the selection of an insurer, as to the property to be insured, nor as to the amount of insurance to be taken. The owner was claiming damages because of the destruction of the buildings, implements, grain and live stock, and yet no agreement had been made either as to the extent of the property insured nor the amounts to be placed upon each kind of the owner’s property. Here the agreement' was that defendant Zima was to select a responsible insurer. The property to be insured was specifically agreed upon — to the extent of $1150 in all. It was stipulated, too, that $550 should be placed on the barn, $100 on the hay therein, $200 on horses and $300 on harnesses, saddles, tools and miscellaneous contents, including some lumber. It is not alleged how long the insurance was to run nor the amount of the premium to be paid, but there are well-known standards as to both of these which must be deemed to have been within the contemplation of the parties when their agreement was made. While the averments of the petition are not as full as they might or should have been, they appear to be sufficient as against the objections made by the defendants.
The judgment is reversed and the cause remanded for a new trial.