Arkansas Ins. Co. v. Cox
| Decision Date | 10 September 1908 |
| Citation | 98 P. 552,21 Okla. 873,1908 OK 170 |
| Parties | ARKANSAS INS. CO. v. COX. |
| Court | Oklahoma Supreme Court |
Syllabus by the Court.
Where an insurance policy is issued and different classes of property insured, each class being separated from the others and insured for a specific amount, and there is a breach of the condition of the contract as to one class of the property insured, the contract should be considered not as one entire in itself, but as one which is separable and in which the separate amounts specified may be distinguished, and a recovery had for one or more without regard to the other items, provided the contract is not affected by any question of fraud, act condemned by public policy, or any increase in the risk of the property insured.
[Ed Note.-For other cases, see Insurance, Cent. Dig. § 568; Dec Dig. § 270. [*] ]
A vendee of land occupying the same under an executory contract of purchase, on which he has paid a portion of the purchase price, is an "unconditional and sole owner" in fee simple of the equitable title within the condition of a policy providing that it shall be void if the interest of the insured is other than unconditional and sole ownership of the fee-simple title.
[Ed Note.-For other cases, see Insurance, Cent. Dig. § 607; Dec Dig. § 282. [*]
For other definitions, see Words and Phrases, vol. 8, pp. 7154, 7155.]
Where it is shown that the insured truthfully and correctly stated the nature and condition of his title in making the application for insurance, he will not be precluded from recovering in case of loss on account of a contrary title stated in the policy by the underwriter.
[Ed. Note.-For other cases, see Insurance, Cent. Dig. § 1028; Dec. Dig. § 389. [*]]
Where an insurance company did not object, within a reasonable time that proofs of loss furnished it by the insured were defective (as that the notary public before whom the same were sworn to did not designate his official title nor attach his seal), it must be held that the company waived all defects therein.
[Ed. Note.-For other cases, see Insurance, Dec. Dig. § 558. [*]]
Where two notes are given in payment of the premium on a fire insurance policy, and no reference is made to them in the policy, nor the validity of the policy is in any way made contingent upon the payment of the notes, the policy is not invalidated by nonpayment of the notes at their maturity.
[Ed. Note.-For other cases, see Insurance, Cent. Dig. § 897; Dec. Dig. § 349. [*] ]
Error from the United States Court for the Central District of the Indian Territory; W. H. H. Clayton, Trial Judge.
Action by J. M. Cox against the Arkansas Insurance Company. Judgment for plaintiff, and defendant appealed to the United States Court of Appeals of the Indian Territory, whence the cause was transferred, under the enabling act, to the Supreme Court of the state of Oklahoma. Affirmed.
Appellee, who was plaintiff below, sued appellant, who was defendant below, on a policy of insurance issued by defendant to plaintiff in the sum of $600, dated December 1, 1905, and expiring December 1, 1906. This suit was originally brought in the United States court for the Central District of the Indian Territory at McAlester. Plaintiff recovered judgment for the sum of $486.86, from which judgment appeal was taken to the United States Court of Appeals of the Indian Territory, and it is before this court for final disposition under the provisions of the enabling act.
Plaintiff in his complaint alleges the issuance of the policy, and attaches a copy of same to his complaint as an exhibit, and alleges that a portion of the property insured by said policy was on the 8th day of December, 1905, destroyed by fire. Defendant in its answer admitted the execution of the policy for the amount and on the date stated in the complaint, but sought to avoid the policy upon the ground that misrepresentations were made in the application of plaintiff therefor, which application was by the terms thereof and by the terms of the policy made a part of the policy.
H. F. George, for appellant.
Campbell & Wright, for appellee.
Numerous assignments of error were made by appellant, but its counsel in his brief states that all propositions raised by the various assignments of error, in so far as this appeal is concerned, are abandoned except three. It is contended that the policy was void, and plaintiff was not entitled to recover: First, because of misrepresentations made by him in the application; second, for failure to furnish proper proof of loss; third, for failure on the part of plaintiff to pay the premium notes given by him in settlement of the premium for the policy. These propositions are raised by appellant by different assignments of error, some of which go to instructions given by the court and excepted to, some to instructions requested by the appellant and refused by the court, and others to the admission of testimony; but we shall not discuss in detail the various assignments of error by which these three different propositions are presented, for all the assignments of error not waived by appellant, taken collectively, present these three propositions of law. If appellant is correct in his contention as to any of them, then the case should be reversed; otherwise, the case should be affirmed.
The policy sued upon was issued by defendant at the office of its general agent at South McAlester, upon a written application of plaintiff which was procured by Foster & Dalton, agents of defendant residing at Stigler, Ind. T. The application was made upon a printed form furnished by the agents of the company. The property to be insured, the valuation and amount of insurance on each item thereof, is stated and described in the application as follows.
Valuation. Sum to be insured.
On dwelling house .................................... $450 00 $300 00
On household furniture therein ........................ 150 00 100 00
On bed and bedding therein ............................ 150 00 100 00
********
On wagons, buggies and harness in barn and
shed ................................................ 150 00 100 00
The policy issued upon the application was for an amount not exceeding $600 on property described in the policy as follows:
******
"$600.00 total concurrent insurance permitted, including this policy." The first alleged misrepresentation in the application for which defendant seeks to avoid the policy is that the policy covers one buggy which was not owned by plaintiff at the time of the issuance of the policy, but that plaintiff by the terms of the application and policy represented that he owned same. By the terms of the application plaintiff's answers therein were made his warranties, and the policy contained the following clause:
"This entire policy shall be void if the insured has concealed or misrepresented, in writing or otherwise, any material fact or circumstance concerning this insurance or the subject thereof; or if the interest of the insured in the property be not truly stated herein; or in case of any fraud or false swearing by the insured touching any matter relating to this insurance or the subject thereof, whether before or after a loss."
By virtue of this clause of the policy it is contended by defendant that the policy is void and of no effect because of plaintiff's misrepresentations as to his interest in the buggy. There is no specific reference in the application or in the policy as to any buggy or buggies, except as has been set out hereinbefore in the clauses quoted from the application and from the policy. Upon receipt of the policy by plaintiff he read the clause "$100.00 on wagons buggies and harness in barn or shed," and thereupon called the attention of defendant's agents, through whom the application for insurance was made, to the fact that he owned no buggy. It appears that plaintiff inferred from the language of said clause in the policy that it was intended to insure a buggy-and he had owned, prior to the giving of the application for insurance, a buggy, but he had sold the same some 60 days before that time. There is no explanation of how the clause in the application and in the policy came to include the word "buggies." The agents were unable to remember that any request for insurance upon buggies was made or any representation by plaintiff that he owned any buggy at the time the application was given and there is nothing in the policy or in the application that indicates that any such representation was made other than the clause quoted. Plaintiff owned a wagon which, however, was not destroyed by fire. He also owned some harness which was still in the barn and shed covered by the policy. There is no evidence whatever that the policy was made to cover buggies through any fraudulent act or procurement of plaintiff, nor was it shown that the risk of the company was increased by...
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