Baker v. Continental Auto Insurance

Citations

• 111 Kan. 425
• 207 P. 828
• 1922 Kan. LEXIS 266

Syllabus

<p>SYLLABUS BY THE COURT.</p> <p>1. Auto Fire Insurance — Action on Policy — Petition Stated Cause of Action — Ownership and Value jor the Jury. In an action upon, a policy in-' suring a touring car against loss by fire, the petition alleged that at the time the policy was issued plaintiff was the owner of the car and that five days later while it was in his garage at his home it was destroyed by fire. The answer denied that plaintiff owned the property at the time the policy was issued or when the loss occurred. The reply was a general denial. There was no demurrer to.the petition, no objection to the introduction of testimony; defendant offered no evidence; waived argument and contended that the petition was fatally defective because it failed to allege that when the loss occurred plaintiff was the owner of the property and to allege the value of the car at the time the loss occurred. Held, that the objections are without merit, and that the allegations of the petition and the supporting evidence were sufficient to carry the case to the jury on the question of ownership and value.</p> <p>2. Same — Under the Facts Arbitration Not a Condition Precedent to the Action. The policy contained an arbitration clause which reads:</p> <p>“4. In the event of loss or damage to the property insured herein, and the assured and the association fail to agree as to the amount of such loss or damage, then such loss or damage shall be determined by appraisers, each party to select one (1) and in case of their disagreement the two so chosen shall select a third and the award in writing of two of them shall be binding as to the amount of such loss or damage only. The association and the assured shall pay the appraisers respectively selected by them and share equally all other expenses in connection with such appraisement.”</p> <p>Held, on the facts stated in the opinion, and because there was no showing that any difference of opinion ever arose between the parties as to the amount of t