112 Kan. 687 | Kan. | 1923
The opinion of the court was delivered by
This is a suit to recover on an insurance policy for loss sustained by fire. The case was tried to a jury; judgment for plaintiff, and defendant appeals. On September 7, 1919, the defendant issued its policy of insurance upon a two and one-half ton truck belonging to plaintiff, for an amount not exceeding $2,400, for a term of one year. About August 5, 1920, the truck was damaged by fire. The policy of insurance contained a number of provisions, among others the following;
“16. Arbitration. In the event of a disagreement as to the amount of loss or damage, the same must be determined by competent and disinterested appraisers before recovery can be had hereunder. The member and the association shall each select one and the two so chosen shall then select a competent and disinterested umpire. Thereafter the appraisers together shall estimate and appraise the loss or damage, stating separately sound value and damage, and failing to agree, shall submit their difference to the umpire, and the award in writing of any two shall determine the amount of such loss or damage. The parties thereto shall pay the appraisers respectively selected by them and shall bear equally the expense of appraisal and umpire.”
About December 1, 1920, the parties being unable to agree upon the amount of the loss, an appraisal was had. under the terms of the policy above quoted. Each of the parties selected one appraiser and the two appraisers selected an umpire. The two appraisers
Appellant complains, first, that the suit was upon the amount found due by the appraisers, and was not upon the policy, and that
“The prayer of a petition is merely the pleader’s idea of the relief to which he is entitled; it is not a part of the statement of the cause of action; and if the cause of action is sufficiently stated and sufficiently proved, the court will adjudge and decree the proper legal redress, which may or may not conform in whole or in part to the relief prayed for by the pleader.” (Syl. ¶ 2.)
In this case the prayer, under the allegations of the petition, might very well have been for the full amount of the policy. Appellant in its brief points out the distinction between an appraisal and an arbitration, and insists that the plaintiff, in his petition, wrongfully treated the appraisal as an arbitration. It will be noted that the policy of insurance gives the title “arbitration” to the paragraph dealing with appraisal. While the matter is spoken of in plaintiff’s petition as an “arbitration or appraisal,” the terms are no more confusing than they are in defendant’s policy. The court correctly treated the matter as an appraisal and as a condition precedent to a suit upon the policy, and permitted the evidence pertaining to the appraisal for the purpose only of proving whether or not that condition had been complied with by the plaintiff so that he would be entitled to sue. This is as favorable a view of the matter for the defendant as could be taken, and we regard it as the correct view.
The policy also contained the following clause:
“6. Liability oj Association. In. the event of loss or damage under this certificate, the association shall be liable only for the actual cost of repairing, or if necessary, replacing the parts damaged or destroyed. It shall be optional with the association to repair, rebuild, or replace the property lost or damaged with other of like kind and quality within a reasonable time, on giving notice .within thirty days after the receipt of the sworn statement of loss herein required, of its intention so to do, but there can be no abandonment to the association of the property described.”
Defendant contends that it offered to repair the truck but that plaintiff refused its offer. The plaintiff was asked on cross-examina
Appellant contends that in plaintiff’s petition he asked for $500 to be taxed as costs, for attorney’s fees, and that the court on motion fixed the attorney’s fees at $600, and appellant makes the point that plaintiff could not recover more than prayed for. We think this point good, and the judgment should be modified by reducing the attorney’s fees from $600 to $500. As thus modified, the judgment of the court below will be affirmed.