Deming Inv. Co. v. Shawnee Fire Ins. Co.

• Decision Date: 06 September 1905
• Citation: 83 P. 918,1905 OK 68,16 Okla. 1
• Parties: THE DEMING INVESTMENT COMPANY a corporation, v. SHAWNEE FIRE INSURANCE COMPANY, a corporation.
• Court: Oklahoma Supreme Court

1905 OK 68

83 P. 918

16 Okla. 1

THE DEMING INVESTMENT COMPANY a corporation, v. SHAWNEE FIRE INSURANCE COMPANY, a corporation.

Supreme Court of Oklahoma

Decided: September 6, 1905

Syllabus

¶0 1. INSURANCE--Reasonable Stipulations. Where an application for fire insurance is made for the purpose of informing the insurance company of the facts with reference to the property sought to be insured, and to furnish it information upon which it is to act in accepting or refusing the risk, and wherein the applicant warrants his answers to be true, a stipulation in the application and policy that if any of the statements made in the application by the applicant are untrue, the policy shall be void, is a reasonable stipulation.

2. SAME--Waiver--Agency. Where a waiver of the stipulations and conditions contained in a policy of fire insurance relied upon is the act and conduct of an agent of the insurance company, it must be shown that the agent had express authority from the company to make the waiver, or that the company subsequently, with knowledge of the facts, ratified the unauthorized action of the agent.

3. SAME--Powers of Agent. An agent for a fire insurance company whose powers are strictly defined and limited by the express terms of the contract of insurance, cannot act so as to bind his company beyond the scope of his authority.

4. EVIDENCE, PAROL--Contracts. A contract in writing if its terms are free from doubt and ambiguity, must be permitted to speak for itself, and cannot, at the instance of one of the parties be altered or contradicted by parol evidence, unless in case of fraud or mutual mistake of facts; and this principle is applicable to contracts of insurance.

5. INSURANCE--Representations in Application--Estoppel. Where by the express terms of an application for, and by the terms of the policy of fire insurance, the application is made a part of the contract of insurance, and the representations contained in the application made by the applicant are warranted by him, and it is stipulated that the policy shall be void if any of such representations are not true, the question of the materiality of such representations becomes unimportant, for under such stipulations, in a suit to recover loss occasioned by the destruction by fire of the property insured, the insurance company is relieved from showing and the insured is estopped from denying that they were material to the contract.

6. PLEADING--Estoppels--Evidence. All acts, representations and conduct relied on as an estoppel should be specially pleaded before evidence to establish the same can be received.

Error from the District Court of Cleveland County; before C. F. Irwin, Trial Judge.

Snyder & Clark and A. Miller Hammett, for plaintiff in error.

Shartel, Keaton & Wells, for defendant in error.

BEAUCHAMP, J.

¶1 This action was commenced by plaintiff in error against defendant in error in the district court of Cleveland county, to recover upon a fire insurance policy issued by the defendant in error to the plaintiff in error, covering the dwelling house situated upon a farm in Cleveland county, which was totally destroyed by fire. Trial was had in that court, resulting in a judgment for the defendant in error for costs. A motion for a new trial was heard and overruled by the court. Exceptions saved, and plaintiff in error brings the case here by petition in error and case made for review.

¶2 At the trial of the case the parties stipulated relative to certain facts which stipulation is as follows:

"It is hereby stipulated and agreed by and between the plaintiff and defendant that at the time of the making of the application in writing for the insurance involved in this action, and at the time of the writing of the policy, that the Deming Investment Company, plaintiff herein, had been the defendant in an action commenced by Lulu Davidson, as the next friend of the minor heirs of John Davidson, deceased, involving the land upon which the building insured by the policy involved in this case is situated, in Cleveland county, Oklahoma; that in said action the Deming Investment Company as one of the defendants, filed its answer by way of cross-petition for the foreclosure of a second real estate mortgage, upon said premises, executed by John D. Davidson and Lulu Davidson, husband and wife, in which said case Jane Lyons was one of the defendants and by answer discloses that she was the owner of a mortgage on said real estate described in said policy of insurance, by an assignment from the Deming Investment Company plaintiff herein, for the sum of one thousand dollars; that in said action the Deming Investment Company recovered a judgment for the amount claimed by way of foreclosure of said second mortgage, and that said judgment was subject to a first mortgage of which Jane Lyons was the owner, and assigned from the Deming Investment Company; that thereafter execution was issued on the said judgment, the property was advertised by the sheriff of Cleveland county and sold subject to the mortgage of Jane Lyons, the Deming Investment Company becoming the purchaser at said sale, and that thereafter on motion of the purchaser, the Deming Investment Company, the sale was confirmed in the Deming Investment Company, and approved by the district court of Cleveland county; that thereafter an appeal was prosecuted in said cause to the supreme court of the Territory of Oklahoma, which said appeal was pending in the supreme court of the Territory of Oklahoma, at the time the insurance was applied for in this action, to-wit: The 22nd day of November, 1901, and at the time said policy involved in this action, was issued, on the same date. That thereafter, the supreme court of the Territory of Oklahoma, by a proper mandate dismissed the said appeal prosecuted by the said heirs of John Davidson, for the reason that the case made was not made and served within the time allowed by the court, and as prescribed by law therefor, affirming the judgment of the confirmation of the district court appealed from, which said mandate was spread upon the records of the district court of Cleveland county, after the policy of insurance was issued the plaintiff herein, and thereafter the district court of Cleveland county directed the then sheriff by proper order to make and execute to the Deming Investment Company a deed for said premises, said order being made on the second day of December, 1901, as shown in Journal 6, page 541 and 542, which order is here referred to, and the recitals therein are agreed to and which orders are as follows, to wit:

¶3 Here follows the order of the district court of December 2nd, 1901, directing the sheriff to execute a deed to defendant in error.

¶4 November 26th, 1901, the plaintiff in error entered into a written contract with Samuel F. Sewell, in consideration of the sum of $ 3800.00, to sell and convey to him the land upon which the house covered by the insurance policy was situated, which contract recited the court proceedings mentioned in the stipulation hereinbefore set out, and provides that as soon as a proper judgment could be obtained in the district court in conformity to the mandate of the supreme court that would enable the plaintiff in error to procure a sheriff's deed to the land, and the court should hold that another suit then pending did not create a cloud upon its title, the plaintiff in error would immediately thereafter make and execute a warranty deed to Sewell upon payment to it within twenty days thereafter of $ 3800.00, less $ 250.00 paid, the receipt of which is acknowledged.

¶5 And it is further provided that if the plaintiff in error did not acquire and furnish to Sewell a good title to the land on or before February 1st, 1902, it would upon demand, return to Sewell the two hundred fifty dollars, with interest thereon at the rate of six per cent per annum.

¶6 The house was totally destroyed by fire on the evening of December 4th, or morning of December 5th, 1901.

¶7 The deed was executed by the sheriff to the plaintiff in error December 7th or 8th, 1901, after the fire. A deed to Sewell was executed by plaintiff in error before the fire, but not delivered until December 30th after the fire, at which time Sewell made a further cash payment and executed a mortgage for deferred payments.

¶8 The petition in error contains five assignments of error under which the questions involved herein and argued by counsel in their briefs are as to whether the insurance policy was invalidated:

1st. By reason of certain misstatements in the written application, signed by the insured.

¶9 The insurance policy involved was written by A. Kinkaid, who was at the time local agent for defendant at Norman, with power to solicit insurance and to receive applications therefor, and with power to write and countersign policies of insurance as such agent, subject to the approval of the defendant. That before writing the policy he was requested to get insurance on the building by Mr. Rule of Oklahoma City, agent for plaintiff. Kinkaid was at the time of writing the policy acquainted with the property to be insured, and familiar with all the conditions of the title of the plaintiff in the land; that at the time he wrote and signed the policy he prepared and wrote an application on the form used by defendant, from his personal knowledge of the facts with reference to the property, and forwarded it by mail to Mr. Rule at Oklahoma City, to be signed by him as agent for plaintiff if found correct, which when received was signed by Mr. Rule and returned to Mr. Kinkaid. Contained in the application is the following:

"18. Is the title in your own name? If other than fee simple title, what kind of a title have you? Explain fully."

"18. Property was sold under foreclosure. Court has ordered sheriff to make deed to this company. Plaintiff made appeal to supreme court which causes delay in issuing deed.

"20. Is it incumbered in any way? If so, how much and when

...