Fidelity-Phenix Fire Ins. Co. v. School Dist. No. 62 of Jackson County
| Decision Date | 30 July 1918 |
| Docket Number | 9003. |
| Citation | 174 P. 513,70 Okla. 300,1918 OK 447 |
| Parties | FIDELITY-PHENIX FIRE INS. CO. v. SCHOOL DIST. NO. 62 OF JACKSON COUNTY. |
| Court | Oklahoma Supreme Court |
Syllabus by the Court.
In a policy of fire insurance issued since the law of this state providing a certain form of policy and that no fire insurance company shall issue fire insurance policies on property in this state other than those of standard form became effective, a provision in the policy of fire insurance on property in this state not found in such standard form of policy will not be enforced unless such provision is within the exception named in section 3481, Revised Laws 1910.
A provision in a policy of fire insurance, issued since the enactment of the law providing a standard form of policy in this state, that, "in case the assured fails to pay the premium notes or order at the time specified, then this policy shall cease to be in force and remain null and void during the time said note or order or any part thereof remains unpaid after its maturity," not being in accord with the standard form of policy provided by the law of this state, will not be enforced.
Where the insurer retains the note given for the premium of a policy of fire insurance and continues to endeavor to collect such note, the insurer is estopped from setting up the failure to pay said note as a defense to an action upon said policy.
Commissioners' Opinion, Division No. 1. Error from District Court, Tillman County; Frank Mathews, Judge.
Action by School District No. 62 of Jackson County against the Fidelity-Phenix Fire Insurance Company. Judgment for plaintiff, and defendant brings error. Affirmed.
Scothorn & McRill, of Oklahoma City, and Wilson & Roe, of Frederick for plaintiff in error.
Mounts & Davis, of Frederick, and Ledbetter, Stuart & Bell, of Oklahoma City, for defendant in error.
This is an action on a fire insurance policy, brought by the defendant in error against plaintiff in error to recover $600 for the total destruction by fire of the school building and the furniture therein, the property covered by said policy. Hereinafter the parties will be designated as they appeared in the trial court. The defendant answered by general denial and pleaded a provision in the policy hereinafter set out that failure to pay the premium suspended the policy, and that plaintiff had failed to pay the warrant issued for the payment of said premium. In reply to the answer of defendant plaintiff averred that defendant had retained the warrant in their possession as their property up to the time of the fire, and that plaintiff had always been willing to pay said warrant under the agreement entered into by plaintiff, and had always been ready and willing to pay said warrant out of funds belonging to said school district as provided by law, and was willing that the amount of said warrant be deducted from the amount sued for in this action.
A copy of the policy of insurance was attached as an exhibit to the petition, and its execution admitted by defendant, which policy was executed on the 1st day of November, 1909, to run five years from said date. The said policy contained the following provision:
"In case the assured fails to pay the premium notes or order at the time specified, then this policy shall cease to be in force and remain null and void during the time said notes, or order, or any part thereof, remains unpaid after its maturity, and no legal action on the part of this company to enforce payment shall be construed as reviving the policy."
The policy also provided that, within 15 days after a loss, notice of loss must be given the defendant, and 60 days thereafter proof furnished the defendant of the loss.
The uncontradicted evidence is that the schoolhouse and furniture covered by said policy were totally destroyed by fire on the 12th day of January, 1914. The further uncontradicted evidence is that when the policy was executed the school district was without money, and on January 13, 1910, plaintiff, by its duly authorized officers, issued and delivered to the defendant a school warrant in the sum of $24 in payment of premium for said policy; that the defendant retained the said warrant and repeatedly made efforts to collect same, but without success; that at the time said building was burned, and at the time of trial, said warrant was still in the possession of defendant and had not been paid. The evidence was in conflict as to whether or not the first, or 15 days' notice was given; but the proof was uncontradicted that proof of loss was furnished within 60 days, that defendant retained proof of loss, and made no objection to the contents of the same.
At the conclusion of evidence, defendant demurred thereto, which demurrer was overruled and excepted to.
Together with other instructions, the court gave the following instruction:
"(2) If you find from a fair preponderance of evidence that the said school district, plaintiff, within 15 days after said fire, gave the said insurance company notice of destruction of said schoolhouse and furniture therein, then your verdict should be in favor of plaintiff, and, unless you so find by a fair preponderance of evidence, then your verdict will be in favor of defendant"-to the giving of which instruction the defendant duly excepted.
Plaintiff requested the court to give the jury the following instruction:
"You are instructed, gentlemen of the jury, that the provisions in the policy of insurance sued on in this case, which provided that said insurance shall be suspended if the order given for the payment of the premium is not paid when due, is a legal and binding provision; and you are further instructed that the burden is upon the plaintiff to show by a preponderance of the evidence that the premium on this policy has been paid according to agreement, and if you believe from the evidence that it...
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