(96 Kan. 679) BARNES v. GENERAL ACCIDENT, FIRE & LIFE ASSUR. CORP., Limited. (No. 19673.) demanded payment under the terms of the policy. This was refused, and this action is the result. The defendant denied liability because of (Supreme Court of Kansas. Dec. 11, 1915.) a breach of the following provision in its in (Syllabus by the Court.) INSURANCE 539 ACCIDENT INSURANCE POLICY-CONSTRUCTION-NOTICE OF DEATH -PROOF OF DEATH. An accident insurance policy contained two provisions: "(m) Written notice of any injury, fatal or nonfatal, or of any illness for which claim can be made, must be given to the company at Philadelphia, Pa., within ten days of date of accident or beginning of illness. Failure on the part of the assured or beneficiary to comply strictly with said notice requirement shall limit the liability of the company to one-fifth the amount which would be otherwise payable under this policy. Notice to an agent does not constitute notice to the company. "(n) Proof, satisfactory to the company, affirmatively establishing the fact that the injury, loss or disability, is such as comes within the provisions and conditions of the policy, must be furnished to the company at Philadelphia, Pa. (on blanks provided on request, by the company), within thirty days from date of death, loss of limb, or of sight, or of the termination of disability. No action at law or in equity shall be maintainable before three months or after six months from the date on which this paragraph provides that said proof must be furnished to the company. Any claim not brought in conformity with the provisions of this paragraph shall be forfeited to the company. * Held, that the first paragraph did not require notice to the company to be given by the benefiIciary within ten days of the death of the assured; and held, that a compliance with the second paragraph by the beneficiary within the time therein specified was sufficient on which to base a recovery. [Ed. Note. For other cases, see Insurance, Cent. Dig. §§ 1328-1336; Dec. Dig. 539.] Appeal from District Court, Sedgwick County. Action by Jennie M. Barnes against the General Accident, Fire & Life Assurance Corporation, Limited. From a judgment for plaintiff, defendant appeals. Affirmed. Noftzger & Gardner, of Wichita, for appellant. Blake & Ayres, of Wichita, for appellee. DAWSON, J. This lawsuit has arisen over the terms of an accident insurance policy. H. Bruce Barnes, in his lifetime, was a barber in Wichita. He held a policy of insurance issued by the defendant company. On May 5, 1913, he fell off his bicycle and was injured. Notwithstanding his injuries, he continued to go to his place of business from day to day, although not in his accustomed health and vigor, until May 18th when he died. No demand was made by Barnes on the defendant company for any payment on account of his accident and injuries. On June 10th, his widow, the plaintiff, presented to the defendant company the proof of her husband's death and the cause of it, and surance policy: "(m) Written notice of any injury, fatal or nonfatal, or of any illness for which claim can be made, must be given to the company at Philadelphia, Pa., within ten days of date of accident or beginning of illness. Failure on the part of the assured or beneficiary to comply strictly with said notice requirement shall limit the liability of the company to one-fifth the amount which would be otherwise payable under this policy. Notice to an agent does not constitute notice to the company." The plaintiff recovered judgment, and defendant appeals; and the alleged error involves the proper interpretation of the clause above quoted. 1. No notice of the accident or injury was given by the assured or by the plaintiff within 10 days of its occurrence. Neither was any notice given within 10 days of the assured's death. He died on May 18th. Notice to the company was given on June 10th-21 days later. What does the policy require? "Written notice of any injury, fatal or nonfatal, or of any illness for which claims can be made, must be given * within ten days ** * of accident or beginning of illness." No claim for indemnity or benefit was made by the assured for the accident or injury or illness. The provision in controversy does not say what notice must be given in case of death. Shall we amend this provision and read into it some duty to be performed by the beneficiary when a claim arises under the policy on the death of the assured? Touching this provision under discussion, the district court instructed the jury (in part): "You are instructed that this paragraph applies to the claim which could be recovered by to the claim of the plaintiff in this case, which the insured himself, and that it does not apply is for the death of the insured and, of course, arises only after his death and after the accident which caused his death. To enable the plaintiff to recover in this case, it is not necessary for her to comply with the provisions of this paragraph, and it is not necessary that notice of the injury or illness for which a claim is made to have been given to the company within 10 days of the date of the accident or the beginning of the illness." In Casualty Co. v. Colvin, 77 Kan. 561, 569, 570, 95 Pac. 565, 568, it was held that, in a clause in an accident insurance policy requiring notice by the insured or the beneficiary within 15 days from the date of the accident, the time did not begin as against the beneficiary until the death of the assured. In the opinion it was said: "It is also contended that, if this right of action existed, it has been lost by failure to give notice as required by clause 4, above set out. than 15 days after the insured was injured. No notice was given to the company until more If such notice was necessary, the failure to give it worked a forfeiture of all rights under the For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes policy. It will be seen from clause 4 that notice of the claim must be given by the insured or by the beneficiary. These parties cannot both have a claim at the same time. It would be a useless thing for the beneficiary to give notice of a claim which is not in existence and which may never arise. Such a proceeding cannot be fairly assumed to have been contemplated by the parties, and it does not seem to be clearly expressed by the language of the policy. Until the death of the insured, the beneficiary had no interest in, or claim to, the policy, and no rights under its provisions. A claim in favor of the insured arose after he received the injury, and to preserve that claim it was incumbent upon him to give the required notice. But the beneficiary, during the life of the insured, had no claim against the company nor any right under the policy to be protected. The language of the clause evidently contemplates that this duty will in some cases rest upon the insured and in others upon the beneficiary, for they are both mentioned.' Since the provision in controversy does not literally provide that notice must be given within 10 days of the death of the assured, let us see if the duty of the beneficiary is not elsewhere prescribed in this policy. One paragraph, in part, reads: "(n) Proof, satisfactory to the company, affirmatively establishing the fact that the injury, loss or disability, is such as comes within the provisions and conditions of the policy, must be furnished to the company at Philadel phia, Pa. (on blanks provided on request, by the company), within thirty days from the date of Any claim not brought in conformity with the conditions of this paragraph shall be forfeited to the company." death. * * This clause seems pertinent. It requires that, within 30 days of the death of the assured, proof shall be furnished to the company showing the fact of the injury, loss, or disability. The plaintiff complied with this requirement. Which clause controls? The one which does not clearly nor even fairly prescribe notice touching the death of the assured, or the one which does. It is not disputed that this latter clause was conformed to by the plaintiff, and it appears to us that it is the clause which directed the conduct of the claimant after the death of her husband. A case somewhat like the present was Hoffman v. Accident Indemnity Co., 56 Mo. App. 301. There the policy provided: "In the event of an accident or injury for which or from which, directly or indirectly, any claim may be made under this certificate, either for weekly indemnity or loss of limbs or loss of both eyes or for the death benefit, immediate notice shall be given in writing signed by the member or his attending physician, or in case of death by the beneficiary, addressed to the secretary of the company, at Geneva, New York, stating the full particulars as to when and where and how it occurred, and the occupation of the member at the time, and his address; and failure to give such immediate notice, mailed within ten days of the happening of such accident, shall invalidate all claim under this certificate." The The assured lived for 40 days after his injuries, but no notice was given to the comcourt held that this provision did not apply pany under the clause just recited. where the claim was made in behalf of the beneficiary after the death of the assured, and that notice within reasonable time thereafter was sufficient. syllabus read: Two sections of the "A condition in an accident insurance policy, requiring the beneficiary to give notice of the death, within 10 days of the happening of the accident causing it, is impossible, and therefore unreasonable, in a case where the death does not occur within 10 days after such accident, and such condition is invalid.” Syl. 1. emanating from the insurer, is capable of two "When a stipulation in a policy of insurance, meanings, that meaning is to be adopted which is most favorable to the insured, and doubt must be resolved in favor of the interpretation of the assured, although intended otherwise by the insurer." Syl. 3. Construing paragraphs "m" and "n" together, it seems clear that paragraph "n" is the one which governs the beneficiary, and, since it is conceded that she complied with its terms within the time therein specified, the judgment in her behalf cannot be dis turbed. It is therefore affirmed. All the Justices concurring. (96 Kan. 736) RIDGWAY v. WETTERHOLD. (No. 19741.)* 1. CONTRACTS 137-SERVICES UNDER INVALID CONTRACT-RECOVERY ON QUANTUM MERUIT. No recovery can be had on quantum meruit for services rendered under a contract prohibit ed by statute. The authorities cited by counsel for plaintiff and defendant seem to be in confusion, and it seems better to resort to the clear and precise doctrine of an analogous case of this court for a precedent. Such is the case of Nesbit v. City of Topeka, 87 Kan. 394, 124 Pac. 166, 40 L. R. A. (N. S.) 749. There the husband of the plaintiff had been injured and died through the negligence of the city. The statute provided that no action could be brought against the city unless a written statement giving the time, place, and circumstances of the accident or injury was A contract for the sale of an interest in filed with the city clerk within four months. a patent right was executed in violation of the While this statute was held to be mandatory provisions of sections 5515-5517, Gen. St. 1909, on the injured party before he could claim and as part of the consideration the purchaser damages, a failure on the part of the widow agreed to employ the owner of the patent and to file such written statement within four pay him for services in the construction of machinery for manufacturing under the patent. months of the injury did not bar her recov-| Held, that the contract is not divisible, but entire, and, being tainted with illegality, no ac ery. [Ed. Note.-For other cases, see Contracts, Cent. Dig. §§ 701-712; Dec. Dig. 137.] 2. CONTRACTS MENT IN PART. 137-INVALIDITY-ENFORCE Rehearing denied January 17, 1916. of the interest in the patent as it is that defendant's agreement to pay him a royalty on the bed springs is part of the consideration. The statute (section 5517, Gen. Stat. 1909) makes it unlawful for the owner of a patent to enter into a contract for the sale of any interest therein unless he has first complied with the provisions of the statute, and the owner is liable to fine and imprisonment for any violation of the statute. In Pinney v. Bank, 68 Kan. 223, 75 Pac. 119, a similar contract, made in violation of the statute was declared void. See, also, Mason v. McLeod, 57 Am. St. Rep. 327; Nyhart v. Kubach, 76 Kan. 154, 90 Pac. 796. The contract under which plaintiff was employed and the services performed being part of the illegal contract, the law will not permit him to avoid the effect of the statute and recover upon a quantum meruit. Bowman v. Phillips, 41 Kan. 364, 21 Pac. 230, 3 L. R. A. 631, 13 Am. St. Rep. 292; Moreland v. Devenney, 72 Kan. 471, 473–475, 83 Pac. 1097. In the Devenney Case, the opinion quotes with approval the following excerpt from Willemin v. Bateson, 63 Mich. 309, 29 N. W. 734: PORTER, J. Plaintiff, who was the own-57 Kan. 105, 45 Pac. 76, 41 L. R. A. 548, er of a patent right covering the manufacture and sale of a bed spring, sold the defendant an interest in the patent. The contract was in writing, and contained a provision that the defendant was to employ the plaintiff to superintend the construction of certain machinery for the manufacture of the bed springs and was to pay the plaintiff $25 per week for his labor and services. Alleging that defendant had refused to pay for the services rendered in accordance with the contract, plaintiff brought the action. The petition contained two counts, the first, upon the written contract; the second, upon quantum meruit. The answer alleged that the contract sued upon was void because the plaintiff had failed to comply with the provisions of sections 5515-5517, Gen. Stat. 1909, which declare the sale of any interest in a patent right void unless the owner has filed with the clerk of the district court duly authenticated copies of the letters patent. The answer alleged that the plaintiff had not complied with any of the provisions of the statute. The evidence disclosed no dispute as to the facts. A demurrer to the evidence was sustained as to the first count, but overruled as to the second. The plaintiff recovered judgment, from which defendant appeals. "But it is a remarkable claim that, where work is done under such a contract, the contract may be treated as null, and the services regarded as rendered properly. No one can use a void contract as a means of getting better terms than he could have claimed under it. The whole transaction is covered by the same taint, and must be treated as beyond the protection of courts of justice." The judgment is reversed and the cause remanded, with directions to sustain the demurrer and render judgment for defendant. All the Justices concurring. (96 Kan. 706) HANKINS v. WILLIAMSBURG CITY FIRE (Supreme Court of Kansas. Dec. 11, 1915.) (Syllabus by the Court.) -PROVISION AS TO OWNERSHIP-OUTSTAND- [1, 2] In his petition the plaintiff, realizing the weakness of his case, sought to avoid disaster to the second count by alleging that the written contract is divisible; and he stands now upon the contention that the agreement to employ him to construct machinery for manufacturing the bed springs under the patent is no part of the contract for the sale of an interest in the patent right. His contention is not sound. The contract is entire. Gerlach v. Skinner, 34 Kan. 86, 89, 8 Pac. 257, 55 Am. Rep. 240; Sedgwick County v. State, 66 Kan. 634, 72ficial ownership of the property, and is in undis * * A fire insurance policy upon a building, containing a stipulation that the policy, "shall be other than unconditional and sole ownerbe void *if the interest of the insured ship," ," is not invalidated because of an outstanding naked legal title in another where the insured has the equitable title, the entire bene puted possession of the same. [Ed. Note. For other cases, see Insurance, Cent: Dig. §§ 601-635; Dec. Dig. 282.] Appeal from District Court, Douglas County. Pac. 284. His contract for employment was Action by T. Hankins against the Williamsburg City Fire Insurance Company. From judgment for plaintiff, defendant appeals. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes Bruce Barnett, of Kansas City, Mo., and S. D. Bishop, of Lawrence, for appellant. W. B. Pleasant, of Ottawa, for appellee. JOHNSTON, C. J. The decision herein turns upon the interpretation of a provision in a policy of fire insurance that: ** "This entire policy, unless otherwise provided by agreement indorsed hereon or added hereto, shall be void if the interest of the insured be other than unconditional and sole ownership." It appears that on July 15, 1909, plaintiff purchased, with his individual funds, a business building in Baldwin, and took the deed therefor in the name of his wife, Mary J. Hankins, which he has always kept in his possession. Plaintiff paid the taxes upon the property, collected the rents, made the repairs out of his own funds, and held exclusive possession of the property. After the purchase of the property, and before the issuance of the policy, Mary J. Hankins died, leaving surviving her husband, the plaintiff, and six children. In April, 1913, plaintiff applied to one W. A. McClure, who was the agent in Baldwin of several fire insurance companies, for a policy of fire insurance upon the property. One of McClure's companies refused the risk. Then McClure procured a policy for $1,000 in defendant company through an arrangement he had made with defendant's agent, Henry C. Long, of Ottawa, and plaintiff paid the premium to McClure, and from him received the policy. On July 7, 1913, the property burned, proofs of loss were properly made, and, defendant refusing to pay the loss, plaintiff brought this action. On the trial of the case the court found that McClure knew the condition of plaintiff's title and, further, that plaintiff did not know of McClure's arrangement with Long to obtain policies through him and to divide the commissions. It was also found that the evidence did not show that plaintiff knew of the condition of the policy, or that he had made any representation as to ownership. The court found against defendant company for $1,045 and $150 attorney's fee, and overruled its motion for a new trial. Defendant appeals. the deed, with no intention to make a gift to her or to invest her with the ownership of the property. It was done, as plaintiff testified, because his wife was much the younger, and, supposing that she would probably outlive him, he thought that he could in that way provide that the property would pass to her upon his death without the trouble and expense of probate proceedings. The deed was never delivered to her, nor did she ever assume to take possession of the property. He purchased it for himself, and paid for it out of his own individual funds. He paid all taxes upon the property, and made all the improvements and repairs that were placed upon it. She had no part in the transaction; could not have asserted a claim of ownership as against him. His interest or ownership was absolute, although there was a naked legal title outstanding, and any loss resulting from the destruction of the property must necessarily be his own loss. It has been said that: the sole and entire beneficial ownership is prop"One who is in undisputed possession and has erly described as sole and unconditional owner, although the title is held in another name, if there is no fraud or concealment." 13 A. & E. Encycl. of L. (2d Ed.) 234. In speaking of a case where the insured was without a deed, but was the real owner, it was said: "If the insured possesses the equitable title to the premises, the fact that the naked legal title is outstanding, which he has a right to compel to be transferred, will not amount to a breach of a condition that he is the owner, that his interest is absolute, or that his title is not other than sole and unconditional ownership." 19 Cyc. 692. See, also, Bonham v. Iowa Central Ins. Co., 25 Iowa, 328; McCoy v. Iowa State Ins. Co., 107 Iowa, 80, 77 N. W. 529; Hough v. City Fire Insurance Co., 29 Conn. 10, 76 Am. Dec. 581; Lebanon Mutual Ins. Co. v. Erb, 112 Pa. 149, 4 Atl. 8; 2 Briefs on the Law of Insurance, Cooley, p. 1369; 2 Fire Insurance, Clement, p. 152, rule 7. It having been determined that the plaintiff was the sole and unconditional owner within the meaning of the contract of insurance, it is unnecessary to consider the questions of agency or of waiver that have been discussed by counsel. The judgment is affirmed. All the Justices concurring. (96 Kan. 675) NOLL v. ELLERMAN et al. (No. 19663.)* (Supreme Court of Kansas. Dec. 11, 1915.) (Syllabus by the Court.) It is defendant's contention that plaintiff did not have the "unconditional and sole ownership" of the property, and therefore that the policy is void. It will be observed that the stipulation in the policy does not make the lack of legal title in the insured a ground of invalidity, nor does it provide that he must have any deed or muniment of title. It goes no farther than to require that he shall have unconditional and sole ownership. Plaintiff not only had an insurable interest in the property, but according to the facts in the case he held the complete equi-jury found for the defendants. The pleadings table title, the sole ownership and the undisputed possession. According to the tes timony his wife was named as grantee in 1. APPEAL AND ERROR 839-SCOPE OF RE- contained nothing to indicate any other subject For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes as no error respecting the pleaded contention is it hardly seems necessary to go into these shown, the record will not be exhaustively interesting but useless fence discussions. scrutinized to ascertain whether or not some outside issue was tried according to legal rules; such examination as the situation justifies failing to disclose prejudicial error. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 2915, 3278-3280, 32863288, 3290-3293, 3297-3300, 3377; Dec. Dig. 839.] 2. APPEAL AND ERROR 1171-GROUND FOR REVERSAL-FAILURE TO AWARD NOMINAL DAMAGES. Rule followed that a reversal will not be ordered for failure to award nominal damages. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 4546-4554; Dec. Dig. ~ 1171.1 Appeal from District Court, Jefferson County. [2] The contention that nominal damages should have been recovered is answered by the rule that reversals will not be ordered for failure to award nominal damages. Hickman v. Richardson, 92 Kan. 716, 724, 142 Pac. 964. Such examination of the record as the situation justifies has been made, however, and on the ostensible theory of the controversy no error appears, while on the real theory we have discovered nothing to show that prejudicial error was committed. The judgment is affirmed. All the Justices concurring. (96 Kan. 740) Action by Abe Noll against Henry Eller MURRY et al. v. MISSOURI PAC. RY. CO. man and others. From a judgment for defendants, plaintiff appeals. Affirmed. J. B. Larimer, of Topeka, and H. N. Casebier, of Oskaloosa, for appellant. C. D. Walker, of Atchison, for appellees. WEST, J. [1] This is a partition fence lawsuit, under the guise of an action for damages by trespassing live stock. The plaintiff owns an 80-acre tract of land, bounded on the north by a tract owned by the defendant Henry Ellerman, west of whose tract is another owned by Ed Ellerman. There is much evidence and controversy about a road and a fence between the Noll and the Henry Ellerman tracts, and it is quite manifest that the stock in question was taken up and this action brought as a means and for the purpose of settling a fence controversy, and is not a question of damages. deed, the jury found that no damage was suffered by the plaintiff, and the general verdict was for the defendant. There is nothing whatever in the pleadings to indicate the real nature of the controversy, and when the voluminous evidence is examined, it becomes apparent that the matter of damages was about the last thing thought of. In The first assignment of error is in sustaining the demurrer of the defendant Henry Ellerman to the evidence of the plaintiff. We have searched the index in vain to find (No. 19744.) (Supreme Court of Kansas. Dec. 11, 1915.) (Syllabus by the Court.) NEGLIGENCE In an action against a railroad for damages caused by fire, where the allegations of the petition restrict the negligence to the acts of the railroad's agents and servants in charge of a freight train, proof of the fire caused by that train establishes prima facie the negli gence alleged. The burden is then on the defendant to disprove that negligence. Cent. Dig. 88 1709-1716, 1733; Dec. Dig. Appeal from District Court, Osage County. Action by G. M. Murry and another against the Missouri Pacific Railway Company. From a judgment for plaintiffs, defendant appeals. Affirmed. W. P. Waggener and J. M. Challiss, both of Atchison, for appellant. A. B. Crum, of Lyndon, and Allen & Allen, of Topeka, for appellees. MARSHALL, J. This is an action by an owner of property and an insurance company to recover damages caused by fire started by the defendant. The plaintiffs recovered judgment. The defendant appeals. It is contended that, under the allegations of the petition and the findings of the jury, the judg ment should have been for the defendant. The negligence alleged is: "The defendant, in the operation of its said railroad, by its agents and servants in charge of a certain freight train, going east on the line of its said railway, along and near said land, sparks of fire and hot cinders to be thrown and negligently and carelessly caused and permitted to escape from the said train and from its engine hauling said train." that the demurrer was either filed or sustained, but a careful examination of the abstract itself discloses that such a ruling was made. In the brief the principal contention is that the court erred in giving 14 instructions and in refusing 4 requested by the plaintiff. Those requested have no reference whatever to anything but partition fences, while those given covered this subject quite fully and fairly and charged the jury that, should they find that the fence in controversy was a partition fence, before they could find "Q. 1. How did the fire originate which defor the plaintiff, they must find that he had stroyed the property of the plaintiff on Nosustained damage by reason of the trespass-2. If you answer the above question that the vember 10, 1912? A. From engine 1210. Q. ing of the stock of the defendants upon his fire originated from defendant's engine No. land. As the jury found adversely to him 1210, then state how the fire escaped from said Special questions to the jury, and the answers thereto, are: For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |