284 P. 594 | Kan. | 1930
The opinion of the court was delivered by
This is an action on a policy or contract of reciprocal insurance. The trial court sustained a demurrer to plaintiffs’ amended petition, and they have appealed.
The original petition was in one count, but in compliance with an
“Subscribers at Consolidated Underwriters, hereinafter called underwriters, do hereby severally agree with the subscriber named in the schedule of warranties hereof, that whenever, within the contract period, bodily injuries (including death resulting therefrom) shall be accidentally inflicted upon any person or persons legally employed by the subscriber, as follows: •
“Compensation coverage. 1. (a) To assume all of the obligations imposed upon this subscriber under the compensation law specified in the compensation indorsement attached hereto, in so far as such obligations apply to compensation or other benefits, on account of bodily injuries (including death resulting therefrom) accidentally inflicted upon such emploj^ees who are covered under this contract.
“Employer’s liability coverage. 1. (b) To indemnify such subscriber by reason of'the liability imposed by law upon him for damages on account of bodily injuries (including death resulting therefrom) accidentally inflicted upon such employees who are covered under this contract, but not in excess of the limits expressed in condition 22 of this contract.
“The foregoing agreements are subject to the following conditions:”
[Concerning which conditions there is no controversy here, and they need not be set out further than to say that Jack Devine was the subscriber named in the schedule of warranties, and that the compensation indorsement attached was the compensation law of the state of Kansas.]
Appellee contends that if the contract be given that construction it would be one that would not be authorized by our statute (R. S. 40-1101) ¡.that this statute limits the authority to exchange reciprocal or interinsurance contracts to those providing for indemnity only. We regard this interpretation of the statute as being too narrow. The remaining provisions of the statute (R. S. 40-1101 to 40-1111) make it clear that associations such as this are treated, with respect to their authority to do business, much as other insurance companies are. Such underwriters are under the supervision of the superintendent of insurance. The attorney, or agent, of the underwriters must file with the superintendent of insurance a verified declaration setting forth, among other things, “The kind or kinds of insurance to be effected or exchanged” (R. S. 40-1103, clause b), and must procure a certificate of authority to issue contracts of the character referred to in the act. (R. S. 40-1110.) The amended petition alleges that Subscribers at Consolidated Underwriters has been authorized and licensed to do business in this state. There is no reason to presume that the kind of insurance effected by the con
One other point must be noticed. The defendant, Subscribers at Consolidated Underwriters, filed not only a general demurrer to the amended petition, but a special demurrer, on the ground that two causes of action were improperly joined, the theory being that the amended petition stated one cause of action against Jack Devine under the workmen’s compensation law, and a separate and distinct cause of action against the Subscribers at Consolidated Underwriters under the contract sued upon. The court sustained this special demurrer. We are asked to review the merits of that ruling. In view of the fact that Jack Devine has'been adjudged a bankrupt and no personal judgment can be obtained against him, there are not many merits of the ruling left. The only effect of such a ruling is to require plaintiffs to proceed in separate petitions on the two causes of action improperly joined. (R. S. 60-709.) There is no reason why this case cannot proceed against the Subscribers at Consolidated Underwriters, it being now the only party defendant against whom liability can be enforced.
The judgment of the court below is reversed with directions to overrule the general demurrer to the petition and to proceed with the case as against the defendant Subscribers at Consolidated Underwriters.