Boutross v. Palatine Insurance

Citations

• 100 Kan. 574
• 164 P. 1069
• 1917 Kan. LEXIS 377

Syllabus

<p>SYLLABUS BY THE COURT.</p> <p>1. Insurance — Loss—Award of i Appraisers — Not Void. In an action upon an award of appraisers appointed to determine a loss under policies of fire insurance, held upon the facts stated in the opinion that the award was not void because the appraisers failed to comply strictly with a provision in the agreement of submission that “the appraisers shall then determine the actual cash value of each article, and place the damages on each at a definite sum per yard, pound, bushel or gallon, etc., as the case may require, in their proper columns.”</p> <p>2. Same — Award by Two Appraisers Valid. The agreement for submission provided for the appointment of two appraisers, who should appoint an umpire, and that an award signed by any two of the three should be binding upon the parties. Held, that one of the appraisers could not by withdrawing from the appraisal prevent the other two from completing the award.</p> <p>3. Same — Amount Claimed in Proof of Loss — Not Conclusive. The amount claimed in the proof, of loss will not preclude the assured from showing a greater loss, where the insurer has not been misled or induced to change its position by the statements in such preliminary proof.</p> <p>4. Same — Fraud Pleaded in Answer — Burden of Proof. In such an action where the answer pleads that the award was false and fraudulent the defendant has the burden of proof, but on the facts stated in the opinion it is held that a ruling’ placing the burden of proof on the plaintiff, and depriving defendant of the right to open and close, can not be regarded as error which justifies a reversal.</p>