Camden Fire Ins. Ass'n v. Walker
| Decision Date | 31 March 1925 |
| Docket Number | 14383. |
| Citation | 238 P. 462,111 Okla. 35,1925 OK 248 |
| Parties | CAMDEN FIRE INS. ASS'N v. WALKER et al. |
| Court | Oklahoma Supreme Court |
Rehearing Denied July 14, 1925.
Syllabus by the Court.
Where an insured brings action to recover upon a fire policy, and alleges the issuance of the policy and destruction of the property by fire in the life of the policy, and further alleges that after the loss occurred the insured and insurer entered into an agreement, in conformity with a provision of the policy, to name appraisers to appraise sound value and damage, and such appraisement was made, and seeks to set aside the appraisement and recover the amount of the policy such petition is not subject to a general demurrer, for the reason that plaintiff has failed to allege ownership or an insurable interest in the property; and it is not error to overrule a demurrer or objection to the introduction of evidence based upon the absence of allegations of ownership.
Where the plaintiff's petition alleges facts sufficient to authorize the court or jury to disregard the appraisement because unfairly or fraudulently made, and plaintiff's evidence reasonably supports such allegations of the petition, it is not error to submit the question of fairness or lack of fairness, of the appraisement, to the jury.
Where the trial court, in the instructions, impartially submits the conflicting contentions as to the fairness or lack of fairness of the appraisement, to the jury, and advises the jury that, if they should find by a preponderance of the evidence that the appraisement was unfairly or fraudulently made, they may disregard the appraisement in fixing the damages, but, unless they so find by a preponderance of the evidence the plaintiffs are bound by the appraisement, the instructions are not erroneous.
Record examined, and held to support the judgment, and that it should be affirmed.
Additional Syllabus by Editorial Staff.
In view of Comp. St. 1921, § 884, relating to method of counting time, action on fire insurance policy for loss, filed October 18, 1922, where loss occurred October 18, 1921, was brought within 12 months, and was not barred by provision requiring such action to be brought within 12 months.
Commissioner's Opinion, Division No. 4.
Appeal from District Court, Garfield County; J. C. Robberts, Judge.
Action by Nettie M. Walker and another against the Camden Fire Insurance Association. Judgment for plaintiffs, and defendant appeals. Affirmed.
Geo. B Rittenhouse and F. A. Rittenhouse, both of Oklahoma City, for plaintiff in error.
Simons, McKnight & Simons, of Enid, for defendants in error.
The plaintiff in error was the defendant below, and the defendants in error were the plaintiffs. The parties will be designated herein as plaintiffs and defendant as they appeared in the trial court.
The plaintiffs filed their suit in the district court of Garfield county on the 18th of October, 1922, against the defendant, seeking to recover the sum of $1,500, the full indemnity provided in a fire insurance policy issued by defendant in favor of the plaintiffs, insuring their property located in Enid, and which property was destroyed by fire on the 18th of October, 1921. It is also alleged in the petition that the question of amount of loss and damage was submitted to two appraisers, who fixed the amount of loss at $1,000, but the appraisement was not based upon information as to the loss, and was not the deliberate judgment of the appraisers, and was and is fraudulent and void. The petition seeks to set aside the appraisement and recover the full amount of the policy, the sum of $1,500.
The defendant demurred to the petition upon the grounds: (1) Misjoinder of parties plaintiff; (2) petition does not state facts sufficient to constitute a cause of action; (3) the petition shows upon its face that the action is barred by a limitation fixed in the policy as a part of the contract. The demurrer was overruled and exceptions reserved. The defendant answered by general denial except as to matters admitted, and corporate existence and authority to do business in Oklahoma, and issuance of the policy, are admitted. It is alleged in the answer that only a part of the property was destroyed and the loss did not exceed the sum of $700; that there was a disagreement over the amount of loss, and under the terms of the policy the matter was submitted to appraisers, who acted under oath, and assessed the loss at $1,000. The defendant seeks to limit the recovery to the amount of the appraisement. The plaintiffs replied to the answer by general denial.
The defendant moved for judgment on the pleadings; but the record does not disclose whether this motion was ever ruled upon by the trial court. It would seem that, if it was not ruled upon by the trial court, it was abandoned and waived by going to trial. If it was passed upon, the ruling must have been adverse to the defendant, and no exceptions seem to have been reserved of record.
The cause was called for trial on the 6th of February, 1923, and tried to a jury. Upon the calling of plaintiffs' first witness, the defendant objected to the introduction of any testimony, because plaintiffs' petition does not state facts sufficient to constitute a cause of action in favor of the plaintiff and against the defendant. The objection was overruled and exceptions allowed. The trial resulted in a verdict and judgment for plaintiffs in the sum of $1,500. The defendant appeals, and presents error under the following propositions: (1) That plaintiffs' petition does not state facts sufficient to constitute a cause of action in favor of the plaintiffs and against the defendant. (2) That plaintiffs' evidence upon the question of appraisement was insufficient to authorize the trial court to submit the question to the jury as to whether or not the appraisement was fairly and legally made. (3) Instructions Nos. 5 and 6 of the court's instructions were erroneous.
Under the first proposition, the objection made to the petition is that it nowhere alleges that the plaintiffs were the owners of the property, or owned an insurable interest therein at the time the insurance policy was bought from defendant; nor does it allege that plaintiffs were owners of the property, or had an insurable interest therein at the time the fire occurred. The defendant cites many cases to the effect that it was necessary for the plaintiffs to allege and prove that they were the owners, or had an insurable interest in the property, both at the time the insurance policy was procured and at the time of its destruction by fire. The cases cited are: Fireman's Fund Ins. Co. v. Cox, 71 Okl. 97, 175 P. 493; Phenix Ins. Co. v. Moffitt (Ind. App.) 51 N.E. 948; Draper v. Delaware State Grange Mut. Fire Ins. Co., 5 Boyce (Del.) 143, 91 A. 206; Northwestern Nat. Ins. Co. v. Southern States P. & F. Co., 20 Ga.App. 506, 93 S.E. 157; Dickerman v. Vermont Mut. Fire Ins. Co., 67 Vt. 99, 30 A. 809; Commercial Union Assur. Co. v. Dunbar, 7 Tex. Civ. App. 418, 26 S.W. 628; Quarrier v. Peabody Ins. Co., 10 W.Va. 507, 27 Am. Rep. 582; Harness v. Nat. Fire Ins. Co., 62 Mo.App. 245; Clevinger v. Northwestern National Ins. Co., 71 Mo.App. 73; Ætna Ins. Co. v. Kittles et al., 81 Ind. 96; J. S. Scott & Sons v. Ph nix Ins. Co., 65 Mo.App. 75; German Ins. Co. v. Everett (Tex. Civ. App.) 36 S.W. 125; Alamo Fire Ins. Co. v. Davis (Tex. Civ. App.) 45 S.W. 604; Chrisman v. State Ins. Co., 16 Or. 283, 18 P. 466; and Hardwicke v. State Ins. Co., 20 Or. 547, 26 P. 840.
It seems that the cases cited support the contention made. An examination of the plaintiffs' petition shows that it does not directly allege that the plaintiffs were the owners or had an insurable interest in the property, either at the time the insurance policy was issued, or at the time the property was destroyed by fire. If there had been no other allegations in the petition than that the policy had been issued and the destruction of the property by fire, to the damage of the plaintiffs, it would seem that the petition would be insufficient and open to the objection made, and the demurrer should have been sustained; but the plaintiffs' pleading goes further than that. In addition to pleading the contract of insurance and...
To continue reading
Request your trial