Exchange v. Coon

• Decision Date: 29 April 1913
• Docket Number: Case Number: 2569
• Citation: 134 P. 22,38 Okla. 453,1913 OK 268
• Parties: WESTERN RECIPROCAL UNDERWRITERS' EXCHANGE v. COON.
• Court: Oklahoma Supreme Court

1913 OK 268

134 P. 22

38 Okla. 453

WESTERN RECIPROCAL UNDERWRITERS' EXCHANGE v. COON.

Case Number: 2569

Supreme Court of Oklahoma

Decided: April 29, 1913

Syllabus

¶0 1. PLEADING--Departure in Reply--Insurance. The assured declared on certain insurance policies, alleging that he had performed all the conditions imposed upon him thereunder. The assurer answered by general denial, and, further, pleaded a forfeiture. The assured, by reply, pleaded specially facts constituting a waiver or estoppel on the part of the assurer as to the provision contained in said policies, to the effect that they should be void and become forfeited "if the subject of the insurance * * * be or become incumbered by a chattel mortgage." Held, that said provision related to a condition subsequent, and the pleading of such facts by reply did not constitute a departure.

2. INSURANCE--Action on Policy--Prematurity. In each policy it being provided, in effect, that no liability would attach in favor of the assured until 60 days after the notice, ascertainment, estimate, and proof of loss had been furnished to the assurer, and the action having been commenced prior to the expiration of said time, but after such expiration the assured having amended his petition, showing the time of the presentment of such proof of loss, and that such period had elapsed, the assurer then answering, denying liability on several grounds, the action was not then premature, but properly maintainable on the amended petition.

3. SAME--Compliance with Iron-Safe Clause--Sufficiency of Evidence. As the evidence introduced on the trial reasonably tended to show that the assured has reasonably and substantially complied with the iron-safe clause provision of the policy, the same is sufficient to sustain on that issue a finding in favor of the assured.

4. SAME -- Waiver of Forfeitures -- Acts of Adjuster. An adjuster for an insurance company is authorized to waive forfeitures in an insurance policy. (a) The same rule applies to an assistant adjuster performing the duties of a chief adjuster, unless his authority is limited, to the knowledge of the assured. (b) Held, under the facts disclosed by the record, that the knowledge of the adjuster in adjusting the loss and carrying on the arrangements, by which deductions were made from the original policies and the same policies as reduced contained in force thereafter for such amounts, bound the company, and under the finding of the jury created an estoppel.

Burwell, Crockett & Johnson, for plaintiff in error.

J. B. Thompson, for defendant in error.

WILLIAMS, J.

¶1 The defendant in error, as plaintiff, sued the plaintiff in error, as defendant, to recover the sum of $ 3,000 on three insurance policies covering the following items: (1) $ 1,000 on a stock of merchandise, consisting of drugs, druggists' sundries, patent medicines, books, musical instruments, jewelry, watches, etc.; (2) $ 500 on his store and fixtures and office furniture, and $ 500 on his stock of merchandise; and (3) $ 500 on his store and office furniture and fixtures, and $ 500 on his stock of merchandise. In St. Paul Fire & Marine Ins. Co. v. Mountain Park Stock Farm Co., 23 Okla. 79, 99 P. 647, by this court, the assured, in an action on an insurance policy, alleged that it "had fully complied with all the terms and conditions of said policy on its part." The assurer answered that the assured had not complied with that condition requiring proof of loss within 60 days. For reply the assured admitted the allegation, and pleaded facts sufficient to constitute a waiver. It was held that the allegation of the reply constituted a departure. The policy sued on provided that "the insured shall within sixty days after loss make proof of same to the insurance company, and that a failure to do so within that time shall cause a forfeiture of any claim under such policy." In Merchants' & Planters' Ins. Co. v. Marsh, 34 Okla. 453, 125 P. 1100, 42 L.R.A. (N.S.) 996, by Supreme Court Commission Division No. 2, it was alleged "that more than sixty days have elapsed prior to the commencement of this suit, after sufficient proof of the loss and damage by fire as aforesaid, and that the plaintiff has duly complied with all the terms and conditions of said policy to be kept or performed." The defendant answered, pleading that the assured had violated the clause "prohibiting additional insurance without consent of the company indorsed on the policy, also that a portion of the goods insured had been removed from the premises without such consent, and also that the title to the property was not as stated in the policy. * * *" To this answer the assured replied, pleading facts constituting a waiver or estoppel. In Springfield Fire & Marine Ins. Co. v. Halsey, 34 Okla. 383, 126 P. 237, by Supreme Court Commission Division No. 2, it was alleged that "plaintiff had complied with all the conditions precedent to an action, and that defendant had refused payment of said policy." The defendant answered by general denial of thee allegations in the petition, and further pleaded a breach of the terms and conditions of the policy, in that assured had failed to take inventories and keep same as provided by the policy, and had failed to keep such books and inventories in a fireproof safe, as were provided for in said policy, and that by reason of plaintiff's failure to keep such books and inventories in a fireproof safe as had been provided for and agreed upon in said policy, he had violated the express terms of said policy, and forfeited his right to recover under same. The assured by reply pleaded facts constituting a waiver. In Gage v. Connecticut Fire Ins. Co. of Hartford, Conn., 34 Okla. 744, 127 P. 407, by Supreme Court Commission Division No. 1, the assured alleged general performance by him of the duties imposed under the contract. The assurer by answer pleaded "various breaches by the plaintiff of the conditions in the contract." The reply pleaded facts constituting a waiver or estoppel. In St. Paul Fire & Marine Ins. Co. v. Mountain Park Stock Farm Co., supra, no authorities are cited as to the question of departure, and the subsequent cases by the two divisions of the Commission merely follow the case. In none of these cases is it disclosed by the statements of facts whether the alleged breaches were by provisions of the insurance contracts, made conditions precedent. In the amended petition, in the case at bar, it was alleged that "on or about the 1st day of December, 1909, within fifteen days after the loss and damage * * * the plaintiff made proper proof of loss and damage in writing * * * that he has fully performed his part of the contract." This amended petition was filed over 60 days after said proof of loss was presented to the assurer, to wit, April 23, 1910. In the reply the assured states that he "admits that the property covered by the policy of insurance, attached to and made a part of plaintiff's petition herein, was incumbered and mortgaged. He admits that a small part of said property, to wit, one Herring-Hall-Marvin safe, one eight foot jewelry salesman showcase, one six foot silent salesman showcase, one four foot cigar silent salesman case, one national cash register, were mortgaged to the Alexander Drug Company, of Oklahoma City, Okla., to secure the payment of a note dated Stratford, Okla., June 30, 1909, and due four months after date, for the sum of $ 283.64; but plaintiff alleges and shows to the court that at the time he took out the policy of insurance the agent of the company was informed of said fact, and wrote the policy and delivered to this plaintiff with full knowledge thereof. The plaintiff,therefore, says that having issued said policy with full knowledge of the incumbrance thereon, as hereinbefore set forth, the defendant waived the provisions of its said contract and is now estopped to set up and plead the same as a defense against plaintiff's cause of action herein." The answer by assurer pleaded a certain provision of the insurance contract, that "if the subject of the insurance be personal property, and be or become incumbered by a chattel mortgage," the policy shall be void, and alleged that the property covered by the contract sued on was incumbered and mortgaged, and by reason of that fact the insurance contracts became forfeited, and the assured was not entitled to recover in the action. Obviously, as pleaded, this was a condition subsequent. The following cases hold that where facts constituting a waiver, estoppel, or excuse for the nonperformance of a condition precedent are pleaded by way of reply, when the same are required to be pleaded in the declaration or petition, a departure from the original pleading result: Murray v. Bright et al., 9 Ky. (2 A. K. Marsh.) 146; Pollard v. Taylor, 5 Ky. (2 Bibb) 234; Lanitz v. King, 93 Mo. 513, 6 S.W. 263; Pier v. Heinrichoffen, 52 Mo. 333; Trainor v. Wouman, 34 Minn. 237, 25 N.W. 401; First National Bank v. Hatch, 78 Mo. 24; Nichols v. Larkin, 79 Mo. 264; Potts v. The Point Pleasant Land Co., 47 N.J.L. 476, 2 A. 242; Eidlitz v. Rothschild, 87 Hun 243, 22 N.Y. 1047; Houghton v. Jewett, 2 Tyler (Vt.) 183; Watson v. Joslyn, 29 Vt. 455. Under our Code the petition must contain "a statement of facts constituting the cause of action, in ordinary and concise language, and without repetition." Section 5627, Comp. Laws 1909 (Rev. Laws 1910, sec. 4737). An answer may contain "(1) a general or specific denial of each material allegation of the petition controverted by the defendant. (2) A statement of any new matter constituting a defense, counter-claim or set-off, or a right to relief concerning the subject of the action, in ordinary and concise language, and without repetition. "Section 5634, Comp. Laws 1909 (Rev. Laws 1910, sec. 4745). "When the answer contains new matter the plaintiff may reply to such new matter, denying, generally or specifically, each allegation controverted by him; and he may...