Cont'l Ins. Co. v. Portwood

• Decision Date: 15 November 1938
• Docket Number: Case Number: 28108
• Citation: 1938 OK 567,184 Okla. 22,84 P.2d 435
• Parties: CONTINENTAL INS. CO. v. PORTWOOD
• Court: Oklahoma Supreme Court

1938 OK 567

84 P.2d 435

184 Okla. 22

CONTINENTAL INS. CO. v. PORTWOOD

Case Number: 28108

Supreme Court of Oklahoma

Decided: November 15, 1938

Syllabus

¶0 1. INSURANCE - Notice and Proof of Loss as Condition Precedent to Action on Fire Policy.

Where a fire insurance policy contains the provision that in case of loss by fire the insured shall give notice of such loss, and shall, within 60 days, make verified proof of loss in writing, and where the policy makes a compliance with such provision a condition precedent to an action, the right of action does not mature until such provision shall have been complied with or waived.

2. SAME - Provision of Policy Requiring Proof of Loss to Be Furnished Within 60 Days Waived by Denial of Liability on Other Grounds Within Such Period - Waiver as Question of Fact not Warranting Directed Verdict Where Evidence Conflicting.

A provision of a fire insurance policy, requiring proof of loss to be furnished the company within 60 days from the date of the fire, is waived by the company by denying liability under the policy within said time upon other grounds than the failure to furnish proof of loss, but the question of waiver under such circumstances is a question of fact, and where the evidence presents a dispute on this issue, it is error for the court to direct a verdict.

3. SAME - Question of Insurer's Conduct Estopping It From Requiring Proof of Loss.

If the investigation by an agent of an insurance company is made within the time required for the furnishing of proof of loss and is attended by such circumstances as to lead the insured to believe that nothing more is required of him and that he has only to wait until the insurer determines either to settle the loss or deny liability, the company may be estopped from requiring the proof of loss; but even though the evidence is undisputed, it is only when all reasonable men can draw but one conclusion that the question of equitable estoppel is one of law for the court and not one of fact for the jury. Where reasonable men may draw different conclusions from the evidence on this issue, it is error for the court to direct a verdict.

4. SAME - Conduct of Insurer not Constituting Waiver of Proof of Loss as Matter of Law.

The mere fact that an agent for a fire insurance company views the loss within the time required for filing of proof of loss, and advises the insured that he will notify the company and that the matter will be referred back to a special agent, and the mere fact that an investigation is made within said time, will not constitute a waiver of the requirement of proof of loss as a matter of law.

Appeal from District Court, Kiowa County; Jno. B. Wilson, Judge.

Action by J.A. Portwood against the Continental Insurance Company of the City of New York. Judgment for plaintiff, and defendant appeals. Reversed, with directions.

Rittenhouse, Webster & Rittenhouse, for plaintiff in error.

R. Place Montgomery and Clayton Carder, for defendant in error.

HURST, J.

¶1 This is an action by J.A. Portwood against the Continental Insurance Company to recover on two policies of fire insurance. One of the policies covered a barn and a dwelling house, and the other policy covered certain grain and hay. Plaintiff sustained a total loss on the barn and grain and hay. Both policies contained a provision requiring sworn proof of loss to be furnished by the insured within 60 days after the fire. Both policies also contained a provision relating to vacancy and unoccupancy, which reads in part as follows:

"Permission given for any of the buildings herein described to remain vacant, unoccupied or uninhabited for not exceeding thirty consecutive days, * * * and after said thirty days' vacancy or unoccupancy this entire policy is void unless vacancy or unoccupancy permit is extended by agreement in writing."

¶2 Plaintiff's petition contained two causes of action, one for each policy. In the first cause of action he alleged that the vacancy and unoccupancy clause has no reference to the grain or hay, and in the second cause of action he alleged that the clause had no reference to the barn. In both causes he alleged that if the clause did apply, it had been waived by the fact that the agents of the company at the time of the issuance of the policy had actual knowledge that the premises were vacant and were informed that they would remain vacant.

¶3 Also, in both causes of action plaintiff alleged that the requirement of proof of loss was waived by the fact that the agents of the company within 15 days after the fire denied liability on the policy on the grounds that the premises were vacant and unoccupied, and had been for a period exceeding 30 days.

¶4 Defendant answered setting up three defenses: (1) That by plaintiff's failure to furnish proof of loss as required by the policy his claim became forfeited; (2) that the policy was rendered void by the violation of the vacancy and unoccupancy provision; and (3) that the policy was rendered void under the provision against increase of fire hazard which was violated by leaving the premises vacant.

¶5 Evidence was submitted by both plaintiff and defendant upon the issues thus made up, and at the close of all the evidence the trial court directed a verdict in favor of plaintiff on both causes of action. Defendant brings this appeal.

¶6 Under the view we take of the case, we are only concerned with the contention that the court erred in directing a verdict for plaintiff.

1. It is well settled that the provision requiring proof of loss to be furnished the company is a condition precedent to a right of action thereon. Atlas Assur. Co. v. Leonard (1925) 108 Okla. 150, 234 P. 771; Nance v. Oklahoma Fire Ins. Co. (1912) 31 Okla. 208, 120 P. 948; Aetna Ins. Co. v. Hughes (1926) 120 Okla. 7, 249 P. 908. It is uncontradicted here that no proof of loss was furnished as required. But such a provision may be waived by the company denying liability under the policy upon other grounds than failure to furnish proof of loss. Oklahoma Fire Ins. Co. v. Wagester (1913) 38 Okla. 291, 132 P. 1071; Atlas Assur. Co. v. Leonard, supra; Springfield Fire & Marine Ins. Co. v. Oliphant (1931) 150 Okla. 1, 300 P. 711; Phoenix Ins. Co. of Hartford, Conn., v. School Dist. No. 132 (1924) 102 Okla. 251, 228 P. 489; Continental Ins. Co. v. Chance (1915) 48 Okla. 324, 150 P. 114. The question of waiver is one of fact, which may be established by evidence of such facts and circumstances as would reasonably result in that conclusion. Hartford Fire Ins. Co. v. Smith (1930) 141 Okla. 90, 284 P. 624. It is a question to be determined by the jury under proper instructions. Gish v. Insurance Co. of North America (1905) 16 Okla. 59, 87 P. 869; Kerr v. Aetna Casualty & Surety Co. (1927) 124 Okla. 112, 254 P. 105.

¶7 Plaintiff first seeks to support the judgment of the trial court directing a verdict in his favor by the contention that the defendant waived the requirement of proof of loss by denying liability because of a violation of the vacancy clause in the policy.

¶8 The evidence discloses that defendant had two special agents, Mr. Sills and Mr. Lund, and that both of these agents visited the scene of the fire at separate times before the expiration of the 60-day period within which the proof of loss should have been made. The evidence is directly conflicting as to whether Mr. Sills or Mr. Lund denied liability on the...