The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1911-07-11

No. 17177.
Amusement Syndicate Company and
Bank of Topeka, Appellees,
The Prussian National Insuranca cor,-
pany, and The Milwaukee Mechanics
Insurance Company, Appellants.
Appeal from Shawnee County
MODIFIED
Syllabus. By the Court. Mason. ].
1. An insurance policy upon a building
used for q theater, stores and Offices pro
fire the insurers liability should be meas
ured by the loss of rent until the building
was rebuilt or repaired, but in case the
insured elected not to rebuild or repair
the premises the amount should be de-
termined by the time which would have
been required for such purpose. The
building was practically entirely destroy
ed by fire A city ordinance forbade its
reconstruction as a theater. A store
and office building was erected upon the
site. Held, that the recovery should be
based upon the time 1t would have taken
to reconstruct the old building, had that
been permissible, and not upon the time
it actually took to build the new one.
2. The provisions of the valued policy
law making the amount named in an in
Surance policy covering improvements on
real estate conclusive evidence of value
in case of a total loss, do not apply to a
policy which insures against the loss in
rents through the destruction of such i'm
prOvementS.
8. An insurance policy contained these
provisions:
In the event Of disagreement as to the
amount of loss the same shall be
ascertained by two competent and disin-
terested appraisers; the insured and the
company each selecting one, and the two
so chosen shall first select a competent
and disinterested umpire. The
loss shall not become payable until 60
days after the notice, ascertainment, eSti-
mate and satisfactory proof of loss here
in required have been received by the
company, including an award by apprais
ers when appraisal has been required.
/. No suit or action on this policy
for the recovery of any claim shall be
sustainable in any court of law equity
until after full compliance by the insured
with all the foregoing requirements"
Held, that an action upon the policy,
brought a year after fire loss, cannot
be defeated by d showing that although
there had been disagreement as to the
amount of the loss, no arbitration had
been had, and that the plaintiff had made
no effort to bring one about, where it ap-
peared that the defendant had likewise
been inactive in the matter.
4. The trial court at the time of render
ing judgment held that a statute author
izing the allowance of attorneys fees as
costs in certain actions did not apply.
After an appeal had been taken and at
a subsequent term the ruling was recon-
sidered and such fees We're allowed. Held,
that whether or not such procedure was
irregular, the question of the applicability
Of the statute can be determined upon the
appeal.
s. One section of a statute provides
that where improvements upon real estate
are insured and a total loss occurs, the
amount named in the policy shall be
deemed the true value of the property.
Another section provides that it shall be
the duty of a company insuring real
property to place in the policy correct
description of the premises, and that an
erroneous description shall not defeat
recovery. A subsequent section provides
that the court in rendering judgment on
"any such policy of insurance" shall al
low the plaintiff an attorneys fee. Held,
that the provision relating to an at
torneys' fee applies to a judgment upon
a policy insuring the owner of a building
against loss of rent occasioned by its be-
ing injured or destroyed by fire
All the justices concurring except West,
who did not sit.
A true copy.
Attest: D. A VALENTINE,
[SeaLl Clerk Supreme Court.