Connecticut Fire Ins. Co. of Hartford, Conn. v. Farmers Union Co-op. Gin of Ladessa

• Decision Date: 08 September 1936
• Docket Number: 25153.
• Citation: 60 P.2d 724,177 Okla. 407,1936 OK 479
• Parties: CONNECTICUT FIRE INS. CO. OF HARTFORD, CONN., v. FARMERS UNION CO-OPERATIVE GIN OF LADESSA, OKL., et al.
• Court: Oklahoma Supreme Court

60 P.2d 724

177 Okla. 407, 1936 OK 479

CONNECTICUT FIRE INS. CO. OF HARTFORD, CONN., v. FARMERS UNION CO-OPERATIVE GIN OF LADESSA, OKL., et al.

No. 25153.

Supreme Court of Oklahoma

September 8, 1936

Syllabus by the Court.

1. The persons named in a loss payable clause appended to a fire insurance policy are proper parties to a suit on such policy but they are not indispensable parties.

2. Where a defect of parties appears from the petition but is raised neither by demurrer nor answer and the absent parties are not indispensable parties to the action, such defect in parties is waived.

3. Proofs of loss furnished by an insured to an insurance company, pursuant to the terms of a fire insurance policy are not substantive evidence of the value of the property alleged to have been destroyed or of the other facts therein stated.

Appeal from District Court, Greer County; T. P. Clay, Judge.

Action by Farmers Union Co-Operative Gin of Ladessa, Oklahoma, a corporation, and Wm. Cameron & Co., Incorporated, against the Connecticut Fire Insurance Company of Hartford, Connecticut a corporation, on a fire insurance policy. Judgment for the plaintiffs and defendant appeals.

Reversed and remanded.

Rittenhouse Webster & Rittenhouse, of Oklahoma City, for plaintiff in error.

H. M. Thacker, of Mangum, for defendants in error.

PER CURIAM.

The parties will be referred to as they appeared in the trial court. The plaintiffs alleged in their amended petition that the defendant issued a fire insurance policy covering certain property belonging to the plaintiff gin company, and that the property covered by the policy was destroyed by fire while the policy was in force.

After a general demurrer had been overruled, the defendant filed an answer consisting of a general denial, an allegation that the policy had been canceled and an allegation that the premium on the policy had never been paid. The case was tried before a jury; at the close of the evidence the court directed a verdict for the plaintiffs for the full amount of the policy $2,500.

The plaintiff gin company was the insured named in the policy; the plaintiff Wm. Cameron & Co. claimed an interest in the proceeds of the policy under a loss payable clause in which it was named "as fourth mortgagee." The policy contained another loss payable clause, in the same form, which was as follows: "Loss, if any, to be adjusted only with the insured named herein and payable to the insured and Chickasha Cotton Oil Co., Biggs & Co., Wichita Falls, Texas, and Elk City Cotton Oil Company, as their respective interests may appear, subject, nevertheless, to all the terms and conditions of the policy."

The defendant contends that the case must be reversed because the persons named in the above-quoted loss payable clause were not parties to the action. The defendant did not raise this question in its demurrer nor was it raised in the answer. The defendant contends that these persons were indispensable parties to the action, and that, hence, the action was not prosecuted by the real parties in interest. While the persons named in the loss payable clause would have been proper parties, and while they should have been brought in upon proper motion, we do not believe that they were indispensable parties under our holding in Liverpool & London & Globe Ins. Co. v. Cargill, 44 Okl. 735, 145 P. 1134.

The defendant waived the defect of parties by failing to raise the question either by demurrer or answer, it appearing that the absent parties were not indispensable parties to the action. Choctaw, O. & G. R. Co. v. Burgess, 21 Okl. 653, 97 P. 271; Hi-Power Gasoline Co. v. Lockwood, 119 Okl. 82, 248 P. 620; Tudor v. American Inv. Co. of Enid, 163 Okl. 274, 21 P.2d 1056.

The policy in question provided: "This policy being for $2500, covers its proportion of and on the following amounts and items:"

Here follow seven separate items of property, each separately described, and separately valued from $200 to $10,000. The policy also provided, in the clause of the conditions usually referred to as the "Three-Fourths Value Clause":

"It is a part of the condition of this policy and the basis upon which the rate of premium is fixed, that in the event of loss, the company shall not be liable for an amount greater than three-fourths of the actual cash value of the property covered by this policy at the time of such loss, and in case of other insurance, whether policies are concurrent or not, then for only its pro rata proportion of such three-fourths value.

Total insurance permitted is hereby limited to three-fourths of the cash value of the property hereby covered and to be concurrent herewith.

If this policy be divided into two or more items, the foregoing conditions shall apply to each item separately."

The policy also provided: "This company shall not be liable beyond the actual cash value of the property at the time any loss or damage occurs, and the loss or damage shall be ascertained or estimated according to such actual cash value, with proper deduction for depreciation however caused, and shall in no event exceed what it would then cost the insured to repair or replace the same with material of like kind and quality."

At the close of the evidence the court directed a verdict for the plaintiffs for...