held on a warrant issued on an information. Ex parte Phillips, 7 Kan. 48; In re Scrafford, 21 Kan. 735, 747; In re Gray, 64 Kan. 850, 68 Pac. 658; In re Terry, 71 Kan. 362, 80 Pac. 586; In re McElroy, 10 Kan. App. 348, 58 Pac. 677. We do not assume that the district court will hesitate to quash this information on proper application. If the information is not then amended under section 72 of the Code of Criminal Procedure (Gen. St. 1909, § 6647), we assume that the petitioner will be discharged. This protects the rights of the petitioner, and gives effect to section 699 of the Code of Civil Procedure (Gen. St. 1909, 8 6295). The writ is denied. All the Justices concurring. (97 Kan. 97) Action by Catherine Lightner against the Prudential Insurance Company of America. From judgment for defendant, plaintiff appeals. Affirmed. Paul H. Ditzen and. L. C. True, both of ervey, German & Michaels, of Kansas City. Kansas City, Kan., for appellant. Haff, MesMo., and David F. Carson, of Kansas City, Kan., for appellee. cover on a life insurance policy. Judgment MARSHALL, J. This is an action to rewas rendered in favor of the defendant on a demurrer to the plaintiff's evidence. The plaintiff appeals. The facts admitted by the pleadings and shown by the evidence are substantially as follows: In August, 1912, Carl C. Lightner obtained from the defendant a life insurance LIGHTNER v. PRUDENTIAL INS. CO. OF policy in the sum of $1,000, payable on his AMERICA. (No. 19846.)* (Supreme Court of Kansas. Jan. 8, 1916.) (Syllabus by the Court.) 1. TIME 10-PAYMENT OF PREMIUMS-DAYS OF GRACE-COMPUTATION. Under the terms of a life insurance policy giving one month-not less than 30 days-grace in the payment of premiums, when the last day of grace falls on Sunday, the insured has the following day in which to make payment. [Ed. Note.-For other cases, see Time, Cent. Dig. 88 34-52; Dec. Dig. 10.] 2. INSURANCE 375 LIFE INSURANCE FORFEITURE FOR NONPAYMENT OF PREMIUM -WAIVER BY AGENT. death to Catherine E. Lightner, his wife. The policy was signed at the defendant's office in New Jersey, and was applied for by and delivered to Carl C. Lightner at Grand Island, Neb., of which state he was then a resident. The premiums were $10.15 each, payable quarterly on the 28th days of February, May, August, and November in each year, at the home office of the company, and exchange for official receipts signed by the might be paid to an agent of the company in president or secretary and countersigned by an authorized agent of the company. If not paid when due, the policy was void, except as Forfeiture for nonpayment of a premium therein provided. In the payment of any due on a life insurance policy which was issued premium a grace of one month-not less than by an agent at Grand Island, Neb., and which 30 days-was allowed, during which time the prohibits the waiver of any of its conditions except by certain named officers, and provides that policy remained in force. The last premium no agent has power to extend the time for pay- paid by the insured became due August 28, ing a premium or to waive any forfeiture or to 1913, and was paid September 29, 1913. The bind the company by making any representation, cannot be waived by statements to the insured premium that became due November 28, 1913, or to the beneficiary concerning the obligations was never paid. The policy contains this of the company or the rights of the insured un-provision: der the policy made by another agent at Abilene, Kan., who had nothing to do with issuing the "If this policy be lapsed for nonpayment of policy or with receiving payment of the premi-premium, it will be revived any time after the ums thereon, and to whom no premium was date of lapse upon written application and paypaid. ment of arrears of premiums, with interest at [Ed. Note.-For other cases, see Insurance, the rate of 5 per cent. per annum, Cent. Dig. 88 948-951, 956-965; Dec. Dig.vided evidence of the insurability of the insured 375.] satisfactory to the company be furnished." 3. INSURANCE 390-LIFE INSURANCE-FORFEITURE-WAIVER. In this case the forfeiture of the life insurance policy was not waived by the company's failure to take some affirmative action declaring such forfeiture. [Ed. Note. For other cases, see Insurance, Cent. Dig. §§ 1037, 1038; Dec. Dig. 390.] 4. INSURANCE 310-LIFE INSURANCE-FORFEITURE-NOTICE-APPLICATION OF STATUTE. Chapter 212 of the Laws of 1913 has no application to a life insurance policy issued in Nebraska in 1912. [Ed. Note. For other cases, see Insurance, Cent. Dig. $$ 703, 761, 780, 826, 840, 904; Dec. Dig. 310.] * pro About January 1, 1914, the insured authorum due November 28, 1913, to the company's ized his sister, Mrs. Glade, to pay the premiagent at Grand Island. She had a conversation with this agent over the telephone, in which he stated that it was necessary to pay $11.15; the extra dollar being for the expense of a medical examination of the insur ed. check for that amount. She stated that she would send him a This she did not do. She wrote to the insured, informing him of the agent's demand. The plaintiff answered the letter and told Mrs. Glade of a conversation she had with the company's agent at Abi Appeal from District Court, Wyandotte lene. Mrs. Glade, upon its receipt, informed County. the agent at Grand Island of this letter, and For cther cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes he replied that he could take the $10.15, but that he was positive the company would not accept it. About January 15, 1914, the defendant's agent at Abilene, Kan., told the plaintiff that there was no reason for paying for re-examination; that the agent at Grand Island was bound to accept the premium of $10.15; that the plaintiff and the insured had no cause to worry about it at all; and that he could accept the premium and send it to Grand Island, but that the plaintiff could send the money herself. The premium was not paid to the agent at Abilene. The plaintiff relied upon these statements, but did not pay the premium. No written application for reinstatement of the policy was made, nor was any evidence of the insurability of the insured furnished at any time after December 28, 1913. Another agent of the defendant at Kansas City told the plaintiff that he could accept the premium, but nothing was paid to him. The insured died April 11, 1914. At the time of paying the August premium, and for some time previous thereto, he and his wife lived at 543 Greeley avenue, Kansas City, Kan., which was the then place of residence of the insured. The company never notified the insured that it intended to forfeit or cancel the policy on account of nonpayment of the November premium. either of these classes. The policy in controversy contains this provision: "No condition, provision, or privilege of this policy can be waived or modified in any case except by an indorsement hereon signed by the president, one of the vice presidents, the secretary, one of the assistant secretaries, the actu ary, the associate actuary or one of the assistant actuaries. No modification or change shall cordance with the law of the state in which the be made in this policy except such as is in acsame is issued. No agent has power in behalf of the company to make or modify this or any other contract of insurance, to extend the time to bind the company by making any promise, or for paying a premium, to waive any forfeiture, or making or receiving any representation or information." This was notice to the plaintiff and to the insured of the limited authority of the defendant's agents. The statements of the agent at Abilene concerned the construction of the policy, and did not change or vary or waive any of its provisions. The agent at Grand Island insisted on the payment of what was necessary to procure a medical examination of the insured in order to satisfy the company of his insurability. Neither the plaintiff nor the insured was misled by the policy or by the agent at Grand Island. Under these circumstances, before the agent at Abilene could waive the conditions of the policy, even if he had authority so to do, he [1] 1. 'The plaintiff contends that the de- must have received the premium which he fendant, by accepting, on September 29, 1913, said was due. Cohen v. Insurance Company, the payment due August 28, 1913, waived the 67 Tex. 325, 3 S. W. 296, 60 Am. Rep. 24; right to demand payment of premiums within Ware v. Millville Fire Ins. Co., 45 N. J. Law, the strict time limits of the policy. Septem-177; Lantz v. Insurance Co., 139 Pa. 546, ber 28, 1913, was on Sunday. Payment of 21 Atl. 80, 10 L. R. A. 577, 582, 23 Am. St. the premium on September 29th was within Rep. 202; May on Insurance (4th Ed.) vol. 2, the 30 days' grace allowed by the policy. 362. These conversations did not waive Gen. Stat. 1909, §§ 5251, 5338, 6343; 38 Cyc. any condition of the policy. 329; note 23 L. R. A. (N. S.) 759; 14 L. R. A. 120. Payment on that day did not waive the terms of the policy as to the time of payment under the laws of this state, nor under the statutes of Nebraska as set out in the defendant's answer. [2] 2. The plaintiff's next contention is that the company waived the right to cancel the policy without notice, because the plaintiff and the insured were misled by the acts and representations of the company's agents. This concerns the conversations which the plaintiff and the insured had with the company's agents at Abilene and at Kansas City. Neither of these agents had anything to do with issuing the policy. We do not see wherein either the plaintiff or the insured had any right to rely on the statements made by either of these agents, or wherein they could bind the company by the statements made by them concerning the policy or the rights of the plaintiff or of the insured thereunder. So far as we are able to ascertain, all waivers of conditions of insurance policies have been made by the agents issuing the policies or by their successors or by superior agents or officers. It does not appear that the defendant's agent at Abilene belonged to [3] 3. The plaintiff argues that the company waived the right to cancel this policy by failing to take some affirmative action to declare the policy forfeited and by failing to issue a paid-up policy to the insured. The tion in default of the payment of premium. policy by its terms provided for its terminaIt was not necessary for the defendant to take any affirmative action to declare the policy forfeited on such default. Joyce on In surance, vol. 2, § 1106. [4] 4. The plaintiff's last argument is that the company failed to send the insured notice of its intention to declare the policy forfeited as required by the laws of this state, and for that reason the policy was not forfeited nor canceled. The plaintiff said: "We urge the court to decide this point because it is a vital question in this case, and one which, when decided, will probably determine this action." Section 1, c. 212, of the Laws of 1913 reads as follows: "It shall be unlawful for any life insurance company other than fraternal doing business in insurance policy on account of the non-payment the state of Kansas to forfeit or cancel any life of any premium thereon, without first giving notice in writing to the holder of any such pol icy of its intention to forfeit or cancel the sured 30 days' notice of its intention to forfeit or cancel the same. same. We have examined all matters presented by the plaintiff, and are unable to agree with her in any of her contentions. The judgment is affirmed. All the Justices concurring. (97 Kan. 127) Section 2 of the same act in part reads: "Before any such cancellation or forfeiture can be made for the nonpayment of any such premium the insurance company shall notify the holder of any such policy that the premium thereon, stating the amount thereof, is due and unpaid, and of its intention to forfeit or cancel the same, and such policy holder shall have the right, at any time within thirty days after A. B. TEGLEY HARDWARE CO. v. CONsuch notice has been duly deposited in the post office, postage prepaid, and addressed to such policy holder to the address last known by such company, in which to pay such premium; and any attempt on the part of such insurance company to cancel or forfeit any such policy without the notice herein provided for shall be null and void." The policy in controversy is a Nebraska contract, and its provisions are governed by the laws in effect in that state when the policy was issued. Grevenig v. Washington Life Ins. Co., 112 La. 879, 36 South. 790, 104 Am. St. Rep. 474; Smith v. Mut. Life Ins. Co. of N. Y. (C. C.) 5 Fed. 582; Cooley's Briefs on the Law of Insurance, vol. 1, pp. 655-660, and vol. 3, pp. 2290-2293; 25 Cyc. 747, 748; 7 Encyc. of U. S. Sup. Ct. Rep. 105. The presumption is that the laws of Nebraska are now the same as ours. No statute similar to ours has been cited to us as being in existence in Nebraska. We have examined the laws of Nebraska, and are unable to find a similar law in existence in that state. We should not be compelled to resort to presumptions in such a matter when the fact can be ascertained definitely. Disregarding the law of Nebraska, does chapter 212 of the Laws of 1913 control this policy? It was issued in August, 1912. The statute makes a radical change in the terms of the policy, a change which affects the rights of the parties thereto, and which, if intended to apply to policies issued before the passage of the act, must be held in violation of section 10 of article 1 of the Constitution of the United States, prohibiting the states from passing any law impairing the obligation of contracts. Shaw v. Berkshire Insurance Co., 103 Mass. 254; Joyce on Insurance, vol. 2, § 1105. There is nothing in the act, however, to show that it is intended to apply to any policies except those issued after its passage. TINENTAL INS. CO. (No. 19868.) (Supreme Court of Kansas. Jan. 8, 1916.) (Syllabus by the Court.) INSURANCE 419-FIRE INSURANCE POLICY Recovery can be had on a fire insurance policy covering merchandise contained in different buildings situated on two adjoining lots, although the property insured is described as being situated on one of the lots, where the evidence shows that the insurance agent and the owner intended to insure the property while in the buildings on either or both of the lots. [Ed. Note.-For other cases, see Insurance, Cent. Dig. §§ 1122-1124; Dec. Dig. 419.] Appeal from District Court, Jewell County. Action by the A. B. Tegley Hardware Company against the Continental Insurance Company. From a judgment for plaintiff, defendant appeals. Affirmed. G. H. Bailey, of Mankato, and Fyke & Snider, of Kansas City, Mo., for appellant. W. R. Mitchell, of Mankato, for appellee. form a fire insurance policy and to recover MARSHALL, J. This is an action to rethereon. The plaintiff recovered judgment. The defendant appeals. The policy was issued for $1,000 on a stock of merchandise, consisting principally of wagons, buggies, plows, and other implements usually kept for sale in hardware and implement houses, also kaffir corn, alfalfa, and other seeds, automobiles, and all other goods, wares, and merchandise not more hazardous, kept for sale by the insured while contained in a one-story iron-clad metal roofed building and adjoining and communicating additions thereto, while occupied as a buggy and implement warehouse and for other purposes not more hazardous, situated on lot 6 of block 2, in Burr Oak, Kan. The plaintiff was engaged in the hardware business. Its buildings were situated on lots 6 and 7 of block 2. The kaffir corn, alfalfa, and other seeds kept for sale by the plaintiff were always kept in the building on lot 7. The plaintiff occupied several separate buildings situated on these lots. A fire destroyed the building and contents located on lot 7. The building on lot 6 extended about five feet over on lot 7. Neither the building on lot 6 nor the contents See, also, Hope Mut. Ins. Co. v. Flynn, 38 thereof were damaged. An automobile was Mo. 483, 90 Am. Dec. 438; Germania Life burned. The plaintiff then owned but one. Ins. Co. v. Peetz (Tex. Civ. App. 1898) 47 S. There were no seeds burned, but the other W. 687; Joyce on Insurance, vol. 2, § 1179. property burned fits the description set out Under the policy, it was not incumbent on in the policy. The defendant's agent that isthe defendant to give the plaintiff or the in-sued the policy was acquainted with the "Generally, a statute will be construed as applying to conditions that may arise in the future. An act will not be given a retrospective operation unless the intention of the Legislature that it shall so operate is unequivocally expressed." Douglas County v. Woodward, 73 Kan. 238, syl. par. 1, 84 Pac. 1028: City of Wichita v. Railroad & Light Co., 96 Kan. 606, 152 Pac. 768. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes rant its issuance, and that the plaintiff has an adequate remedy at law. The defendant moves for judgment on these allegations. plaintiff's business, knew the location of the contains paragraphs alleging that the court buildings, and knew that the kaffir corn, al- is without jurisdiction, that the alternative falfa, and other seeds were kept and binned | writ does not contain facts sufficient to waron lot 7. The plaintiff believed that the policy covered the property situated on lot 7. He did not read the policy until after the fire. The insurance rate on the contents of the building situated on lot 6 was $1.21 per hundred, and on lot 7 $1.46. The rate paid by the plaintiff was $1.21. The defendant contends that there was not sufficient evidence to justify the jury in finding that the policy was intended to cover the property situated on lot 7. The defendant objected to the introduction of certain evidence, demurred to the plaintiff's evidence, and requested certain instructions; all based on the theory that the policy did not cover any property on lot 7. We have examined the evidence, and are of the opinion that there was sufficient to justify the court in submitting to the jury the question of whether or not the policy was intended to cover property situated on both lots 6 and 7. The jury returned a verdict in favor of the plaintiff. That verdict, under the evidence, is conclusive in this court. The judgment is affirmed. All the Justices concurring. (97 Kan. 142) TOPEKA BRIDGE & IRON CO. v. BOARD (Supreme Court of Kansas. Jan. 8, 1916.) (Syllabus by the Court.) MANDAMUS 3-RIGHT TO REMEDY-COUNTY BRIDGE CONTRACT. The court has jurisdiction to entertain actions of mandamus, and the question is whether or not its power to issue the writ should be exercised in the present instance. It is said that the alternative writ does not state sufficient facts, because there is nothing which the defendant may be commanded to do. The contract requires the defendant to close the site of the bridge against traffic and to give the plaintiff possession of the site for the purpose of building the bridge. This the defendant may be commanded to do now. Otherwise the plaintiff would incur liability for obstructing the highway and creating a nuisance to public travel. The remedy by action at law for damages for breach of the contract is not fairly adequate. The profit to accrue to the plaintiff from building the bridge cannot be definitely ascertained in advance of performance, and the plaintiff is entitled to be placed in possession of the right secured to it by the con tract. The motion for judgment in favor of the defendant is overruled. Some formal issues of fact are made by the pleadings. The real dispute between the parties, however, relates to the validity of the contract, the defendant contending that the plans upon which bids were invited were not sufficient to secure competitive bidding, and consequently that the contract was entered into contrary to law. While the ultimate question is one of law, the defendant desires to aid the court in its solution by presenting some testimony elucidating the subject of reinforced concrete bridge construction. Leave is granted both parties to make a suc The plaintiff contracted with the board of county commissioners to erect a bridge over a stream. The contract provided that the board of county commissioners would close the site of the bridge against traffic and would put the plaintiff in possession of the site for the purpose of building the bridge. Before performance the board of county commissioners undertook to repudiate the contract on the ground of ille-cinct showing relating to this subject, in congality. Held, mandamus is a proper remedy. [Ed. Note.-For other cases, see Mandamus, Cent. Dig. §§ 8, 10, 11, 16-34; Dec. Dig., 3.] Original proceeding in mandamus by the Topeka Bridge & Iron Company against the Board of County Commissioners of Labette County. Defendant's motion for judgment on the pleadings overruled. D. R. Hite, of Topeka, for plaintiff. S. M. Brewster, Atty. Gen., S. N. Hawkes, Asst. Atty., Gen., and E. W. Columbia, of Oswego, for defendant. BURCH, J. The action is one of mandamus to compel the defendant to carry out a contract for the erection of a reinforced concrete bridge, which contract the defendant has undertaken to repudiate. No motion to quash the alternative writ was filed and the defendant answered. The answer, however, nection with the proof of such facts as cannot be covered by stipulation. In default of agreement the court will prescribe conditions as to time and method of taking testimony. All the Justices concurring. (97 Kan. 144) BEARD et al. v. KANSAS CITY. (No. 20274.) (Supreme Court of Kansas. Jan. 8, 1916.) (Syllabus by the Court.) INJUNCTION 7-REMEDY BY APPEAL-EFFECT. In a proceeding under section 1024 of the General Statutes of 1909 to extend a street, the report of the appraisers stated that they ap praised and assessed the actual value of the land taken without reference to the projected improvement and the actual damages to all other property thereby. In the column of benefits opposite the tract of land owned by the plain tiffs were the figures "300," indicating $300, while in the column of damages opposite the tract actually taken was the word "none." Held that, in view of the presumption and statement that the appraisers acted in accordance with the law, it can fairly be deduced from the entire report that they subtracted the value of the land taken from the benefits to the entire tract, giving a surplus of $300, amounting, at most, to an irregularity which could be remedied by an appeal taken at proper time, and hence injunction will not lie. [Ed. Note. For other cases, see Injunction, Cent. Dig. §§ 6, 34; Dec. Dig. 7.] Appeal from District Court, Wyandotte County. Action by C. C. Beard and another against the City of Kansas City, Kan. From a judgment for defendant, plaintiffs appeal. Affirmed. David F. Carson and James T. Cochran, both of Kansas City, for appellants. R. J. Higgins, of Kansas City, for appellee. the actual value of the land proposed to be condemned and taken for such street, without reference to the projected improvement and the actual damages to all other property thereby, and we assessed the city the amount of the benefits to the public generally, * ** * and we now return said schedule and list in full as a complete and impartial statement of said damages and benefits.' It is argued that the law requiring, in case of an appeal, a bond that the party appealing will pay all costs if he does not recover a judgment for a greater amount than that allowed him by the appraisers (Gen. Stat. 1909, § 1024), implies that the report must specify the sum actually allowed. But it seems beyond question that the allowance of nothing gives the same right of appeal as the allowance of a nominal sum would give, and if in case the benefits exceed the damages the appraisers should simply report the overplus of the former, instead of the two amounts with the remainder, the only effect would seem to be that the party aggrieved could appeal with a much smaller bond than would be required in case the other method had been followed by the appraisers in their report. In Com'rs of Pottawatomie County v. O'Sullivan, 17 Kan. 58, a case involving the ap road, in speaking of compensation to the owner, it was said: "But this compensation is secured if the individual receive an amount which, with the ditained by the appropriation. We, of course, exrect benefits accruing, will equal the loss susclude the indirect and general benefits which WEST, J. The plaintiff sought to enjoin the city from taking possession of plaintiff's land for the purpose of opening a street under certain pretended condemnation proceedings, alleging, in substance, that they were void, and were had without in any manner assessing the damages caused thereby or as-propriation of a right of way for a public certaining the actual value of the land proposed to be taken, or assessing the actual damages to other property affected thereby, or assessing against the city the amount of benefit to the public generally, and also that the appraisers through mistake or by inadvertence assumed or acted upon the presump-result to the public as a whole, and therefore tion that plaintiff's land was a part of a pub-pays in taxation for his share of such general to the individual as one of the public; for he lic highway, and therefore that no compensa- benefits." (Page 59 of 17 Kan.) tion was due them. The report of the appraisers was set out as an exhibit, and showed that the amount of damages assessed was nothing, and the amount of benefits was $300. The defendant demurred, and the demurrer was sustained upon the ground that facts sufficient to constitute a cause of action were not stated. Other complaints are made and other questions are argued, but the case turns upon the one point whether or not, under the amended petition and its exhibits, the defendant is shown to have taken the plaintiff's land without the required allowance of damages. The plaintiff insists that, in the face of the allegation that no such allowance was made and of the exhibited report showing the word "none" under the heading "amount of damages allowed," it cannot be said that the statutory requirement was followed. The city contends that the real fact is shown by the report of the appraisers, which is that they did their duty and assessed the benefits $300 greater than the damages, and simply stated in their report the difference, without giving the two basic items, the report itself stating that: They "upon actual view proceeded to fairly and impartially ascertain, appraise, and assess See, also, Tobie v. Com'rs of Brown County, 20 Kan. 14; Roberts v. County of Brown, 21 Kan. *247; Trosper v. Com'rs of Saline County, 27 Kan. 391. The owner was entitled to the value of the land taken less the benefit to his remaining land. The report shows that both the tract owned by the plaintiffs and the part thereof taken for the proposed improvement were considered, and the special benefits to the former assessed. While it does not clearly appear that the value of the strip taken was fixed, yet, upon the assumption and the general statement in their report that the appraisers did their duty and followed the statute, there is a basis for believing that they, in fact, named as benefits the surplus over the value of the land taken. If this be true, it amounts to nothing more than an irregularity, and the statute has provided an appeal from the award of benefit or damages to be taken ten days after confirmation and notice thereof, and it is the opinion of the court that this remedy was proper and ample and the one to be availed of, and that injunction will not lie. The judgment is affirmed. All the Justices concurring. |
