In re Estate of Morse

The opinion of the court was delivered by This appeal springs from a petition for the allowance of a demand filed in the probate court of Rush County against the estate of Howard Morse, deceased. The petition was filed by the Springfield Monarch Insurance Company, a corporation, claiming to be subrogated to the rights of the owner of a dwelling, located in the City of La Crosse, on which it had paid fire damage to the owner. The intestate decedent was occupying the dwelling as a tenant at the time of the damage by fire. The claim was properly transferred to the district court for trial where that tribunal, after a hearing, sustained a demurrer to the claimant's evidence, rendered judgment against it for costs, and ultimately overruled its motion for a new trial. Thereupon claimant perfected the instant appeal. The amended petition, as filed in the district court, is short and fully reflects the facts on which claimant relies for recovery. Omitting formal averments of no consequence pertinent portions of that pleading read: ""That on or about the 8th day of November, 1961, the petitioner had in force a policy of insurance for fire . . . issued to Mrs. Elma Jecha of Timken, Kansas, which policy insured a dwelling . . ., in the . . ., This dwelling at the time above-mentioned at about 8:00 o'clock a.m., was occupied by Howard Morse, deceased, as a tenant and was at the time in his exclusive possession, care, custody and control; and more particularly, he was in the exclusive possession and control of the interior and the fixtures therein where the fire started. That the fire and resulting damage occurred solely and proximately through the negligence and carelessness of the decendent, Howard Morse, who lost his life as a result of the said fire. ""That as a result of said fire, the petitioner was required to pay its policy holder . . . ($3,000.00) . . ."" ""That as a reason of the said petitioner's obligation to pay to Elma Jecha . . . ($3,000.00) under the provisions of its policy of insurance in force at the time the damage was sustained, it became subrogated to the rights, claims and interest of its insured, . . . ""That by reason of the contract between the petitioner's insured and the decedent, placing in the decedent the exclusive control, the decedent undertook to use due care and to take due care of said property while in his possession and to redeliver the same to the petitioner's insured upon the termination of the contract in the condition that said property was in at the time of placing it in his care.