Atl. Fire Ins. Co. v. Smith

• Decision Date: 29 March 1938
• Docket Number: Case Number: 27646
• Citation: 1938 OK 211,183 Okla. 97,80 P.2d 216
• Parties: ATLANTIC FIRE INSURANCE CO. v. SMITH et al.
• Court: Oklahoma Supreme Court

1938 OK 211

80 P.2d 216

183 Okla. 97

ATLANTIC FIRE INSURANCE CO. v. SMITH et al.

Case Number: 27646

Supreme Court of Oklahoma

Decided: March 29, 1938

Syllabus

¶0 1. Appeal and Error--Force and Effect Accorded Judgment in Jury-Waived Case.

Where a jury is waived and the cause tried to the court, the judgment of the court will be given the same force and effect as the verdict of a properly instructed jury upon review in this court.

2.Appeal and Error--Change of Theory of Case on Appeal not Permissible.

When a cause has been presented and tried in the lower court upon certain theories and an appeal has been perfected here, the parties will not be permitted to present a new theory which was not presented to the trial court.

3.Pleading--Conclusiveness of Admissions in Pleading.

Admissions in a pleading material to the action or a defense thereto are conclusive upon the party making them so long as they remain in, the record, and cannot be contradicted by evidence offered by the parties so bound.

4. Insurance--Termination of Contract by Request of Insured for Cancellation of Policies.

When a policy of insurance provides that it shall be canceled upon the request of the insured, an unequivocal request made by the insured for such cancellation is all that is required to terminate the contract with respect to the subsequent rights and liabilities of the parties thereunder.

Appeal from District Court, Creek County; J. Harvey Smith, Judge.

Action on contract of insurance by William C. Smith et al. against Atlantic Fire Insurance Company. Plaintiffs had judgment, and defendant appeals and the plaintiffs cross-appeal. Reversed, with directions.

M. C. Rodolf, J. B. Houston, Parke Davis, and J. B. Patterson, for plaintiff in error.

Streeter Speakman, Glenn O. Young, and A. L. O'Bannon, for defendants in error.

PER CURIAM.

¶1 This is an appeal from the district court of Creek county. The action was instituted by the defendants in error, hereafter referred to as plaintiffs, against the plaintiff in error, hereafter referred to as defendant, to recover the sum of $3,500, alleged to be due under a contract of fire insurance.

¶2 Plaintiffs in their petition allege, in substance that on February 1, 1934, they were the owners of certain furniture, fixtures, and a stock of merchandise located in the city of Bristow, Okla., and that on said date the defendant, through its agent at said point, issued and delivered to the plaintiffs a certain policy of insurance whereby the aforesaid property was insured in the amount of $3,500 against loss or damage by fire for a period of one year; that on March 13, 1934, while said policy of insurance was in full force and effect, the property covered thereby, and of the value of $9,767.58, had been d amaged and destroyed by fire; that timely proof of said loss had been furnished the defendant, but that defendant had denied any and all liability under said policy. Wherefore, plaintiffs prayed judgment for the face amount of said policy. Answer of defendant admitted the execution and delivery of said policy of insurance as pleaded by the plaintiffs, but alleged that it had been canceled prior to any loss thereunder, and by way of further defense asserted that the plaintiffs had caused the fire, and that the proof of loss submitted was false and that the plaintiffs had encumbered a portion of the insured property by chattel mortgage, and had thereby voided the policy, and that the proof of loss which plaintiffs furnished was insufficient, and, therefore that the defendant was not liable to the plaintiffs in any amount. The plaintiffs in their reply, after specifically denying that the policy had been canceled prior to the loss thereunder, admitted that they had requested the defendant to cancel said insurance March 1, 1934, but alleged that it had refused to do so until after the loss had occurred, and pleaded further that after the loss the defendant had, with full knowledge of all of the facts, denied liability upon the sole ground that the policy had been previously canceled, and that it was thereby, estopped to plead any other defense. Defendant was thereafter permitted to file an amendment to its answer wherein it denied the execution of the loss payable clause which was attached to the policy shown as an exhibit to plaintiffs' petition. The parties waived a trial by jury and tried the cause to the court. The court found the issues generally in favor of plaintiffs and gave them judgment in the sum of $2,550. The defendant appeals, and the plaintiffs cross-appeal.

¶3 The record reveals substantially the following state of facts: Plaintiffs, on February 1, 1934, procured a policy of insurance from one J. H. Roach, an agent of the defendant; thereafter, and about February 12, 1934, plaintiffs executed a chattel mortgage to the Morris Plan Bank of Tulsa on a portion of the property which had been insured. The agent, J. H. Roach, had authority to endorse consent to mortgages on policies issued by his company, but whether he did in the instant case was a disputed question. About March 1, 1934, the plaintiffs told the agent of the defendant that they desired to terminate the policy for the reason that they wanted to give the insurance to an agent of another company, and about the 4th or 5th of March, 1934, defendant's agent called for the policy, but plaintiffs were unable to locate the same, and thereafter, on March 10, 1934, the defendant wrote the plaintiffs notifying them that the policy had been canceled effective at noon, March 17, 1934. Plaintiffs suffered a loss by fire on the night of March 13, 1934, and claimed that the original policy which had been delivered to them had been lost or destroyed, and therefore they attempted to prove contents of the policy and a loss payable clause by secondary evidence. This gave rise to the dispute regarding the execution of the loss payable clause. Without objection there was some evidence introduced to the effect that the plaintiffs had procured another policy of insurance in the same amount and covering the same stock of goods from another company in accordance with their previous advice to the defendant's agent. It does not appear from the evidence whether this insurance was valid or otherwise. The extent of loss and damage sustained by the plaintiffs was fixed by different witnesses at varying...