50 Kan. 427 | Kan. | 1893
The opinion of the court was delivered by
The facts in this case are as follows: Robert Kenworthy and A. E. Kenworthy, partners as Robert Kenworthy & Co., on the 9th of September, 1887, were the owners of a small, one-story, frame, store building, located on the northeast corner of the northeast quarter of the northwest quarter of section 34, township 7, range 15, together with a stock of general merchandise kept by them in the store. The land was owned by A. W. Bailes. He gave Kenworthy & Co. permission or license to occupy the corner- with the store building. On the 9th of September, 1887, the Rockford Insurance Company, of Rockford, 111., issued to Kenworthy & Co. its policy of insurance upon the store building, furniture, and the stock of merchandise therein, divided as follows: $50 on the store building, $25 on the furniture, and $775 on the stock of merchandise, aggregating in all $850. On the 11th of October, 1887, while
“If the-interest of the assured in the property be any other than the entire, unconditional and sole ownership of the property, for the use and benefit of the assured, or if the building insured stands on leased ground, or if there be a mortgage or other incumbrance on any of the property insured, it must be so represented to the company, and so expressed in the written portion of this policy; otherwise the policy shall be void.”
Upon the trial, the Farmers’ State Bank recovered judgment for $844.50. The jury found that the total value of the stock destroyed by the fire was $950. Complaint is made because Kenworthy & Co. and the Farmers’ State Bank were joined as plaintiffs The written transfer or assignment on the back of the policy showed that the Farmers’ State Bank was the real party in interest and was entitled to recover, as alleged in the petition. The execution of the written assignment was not denied under oath, and therefore was admitted. The Farmers’ State Bank is the only party that recovered, any judgment, and there was no material error prejudicial in any way to the insurance company in joining Kenworthy & Co. with the bank as plaintiffs, or in sustaining the demurrer-to the defense which alleged that Kenworthy & Co. “ were not the real parties in interest as to the whole controversy.”
The deposition of A. E. Kenworthy was properly received in evidence. This deposition was taken under a notice specifying that the taking would be adjourned from day to day from 8 A. M. to 6 p. M. There was no appearance by the defendant between these hours. At the conclusion of the taking of the deposition on the first day, an adjournment was had until the next day at 11 o’clock A. M. On the trial, the insurance company objected to the deposition on that account. This objection was properly overruled. The deposition was taken pursuant to the statute and the notice given. Again, the objection was made orally, and not in writing. No exceptions, other than that of incompetency or irrelevancy, can be regarded, unless in writing and filed with the papers in the cause before the trial. (Civil Code, §§ 363, 364.)
L. E. Campbell was the general agent of the insurance company. He accepted the premium and delivered the policy after he had signed the same as agent. Upon the trial, he was asked if he had any belief with Deference to the land upon which the store was situated being owned by Ken worthy & Co. at the date of the policy. This question was improperly stated to the witness. He should have been asked his knowledge, not his belief. His answer, however, was, that he “supposed the land to be the claim of A. W. Bailes.” He further answered that “he did not know whether it was government land or not,” and “that the title or ownership of the land did not in any way influence him in writing or issuing the policy.” Any error in the inquiry or answer was imma
It is intimated that there was evidence before the jury tending to prove that Kenworthy & Co. had set the store on fire. This was not established before the jury. The stock destroyed, as found by the jury, amounted to $950. The recovery was $844.50 only. The court charged the jury as follows: t
“If Ken worthy & Co. set that building on fire, there can be no recovery in this case; if they authorized anyone to do so, there can be no recovery; or if they knew that a fire would occur and removed any portion of the stock from the building in expectancy of a fire occurring, there can be no recovery in this action.”
The questions raised concerning the fire being started by Ken worthy & Co. were properly submitted to the jury, and the jury found upon this issue against the insurance company. The jury and the trial court were the proper judges of the credibility of the witnesses and the weight of their testimony upon this matter.
The judgment of the district court will be affirmed.