Graff v. National Liberty Insurance

Citations

• 107 Kan. 648
• 193 P. 356
• 1920 Kan. LEXIS 141

Syllabus

<p>SYLLABUS BY THE COURT.</p> <p>1. Fire Insurance — Appraisers Chosen — Partial Appraisement — Not ■Binding on Assured. An appraisement made under a policy of fire insurance to ascertain the amount of damage to the property caused by fire is not binding on the assured where the appraisers' failed to ascertain the damage to all the property covered by the policy and described in the contract submitting the matter to them.</p> <p>2. Same — Construction of Policy. Applying the principle that “contracts of insurance are to be construed, where construction is permissible, piost strongly against the insurer and in favor of the insured” (Insurance Co. v. Milling Co., 69 Kan. 114, 76 Pac. 423), to the words “only while occupied as a dwelling house,” contained in a fire insurance policy, it is held that liability under the policy attaches to a building described therein that is used as a dwelling house although the building is also used “as an ice cream parlor in a meager way.”</p> <p>3. Same — Company Estopped by Its Answer and Tender of Payment— Waiver. The right to avoid a policy of fire insurance, on account of alleged discrimination in the rate at which the insurance was written or on account of the use made of a part of the building insured, is waived by an offer to pay and a tender of the amount of a fire loss ascertained by appraisers appointed by contract between the insured and the insurer, and by an answer pleading that appraisement and offer to pay and tender of payment as a defense in an action by the insured on the policy, and by a tender of that amount into court for ■ the use and benefit of the insured.</p>