Palin v. Insurance Co. of North America

Citations

• 92 Kan. 401
• 140 P. 886
• 1914 Kan. LEXIS 244

Syllabus

<p>SYLLABUS BY THE COURT.</p> <p>1. Agreement for Additional Insurance — Omitted from Policy —Policy May be Reformed. The doctrine of the case of Pfiester v. Insurance Company, 85 Kan. 97, 116 Pac. ,245, applied in an action to reform a fire insurance policy to include permission to take out additional insurance according to oral negotiations between the plaintiff and the defendant’s agent, and to recover on the reformed policy.</p> <p>2. Insurance — False Answers Inserted in Application by Agent ■ — Policy Not Avoided — Pleadings. In taking the application the agent appended the false answer, “No,” to the question, “Is the land described mortgaged?” without the knowledge or authority of the plaintiff and without propounding the question to him. The policy as written contained a condition against incumbrances. The petition pleaded broadly compliance with the terms of the policy. The answer pleaded the condition against incumbrances. The reply set up the facts stated. A motion to strike out the reply for departure was overruled. A trial on the merits followed and the plaintiff recovered. Held, the defendant was not prejudiced in its substantial rights because of the departure.</p> <p>3. Same — Compromise Agreement after Loss — Subsequently Waived. After the insured property burned, a special agent of the defendant procured the plaintiff to sign an agreement to .surrender the policy and to accept $100 in full settlement of his claim. The plaintiff did not surrender the policy, the defendant did not pay or offer to pay the $100, and further negotiations for settlement followed which induced the plaintiff to believe that the defendant had abandoned the compromise agreement and to act accordingly. Held, sufficient to constitute a waiver of the agreement.</p> <p>4. Pleadings — Proof — Variance Not Prejudicial. A variance between the pleadings and the proof respecting waiver of the compromise agreement held not to be prejudicial.</p>