Georgia Home Ins. Co., Columbus, Ga. v. Choctaw Cotton Oil Co.
| Decision Date | 27 October 1931 |
| Docket Number | 20283. |
| Citation | 5 P.2d 152,153 Okla. 194,1931 OK 645 |
| Parties | GEORGIA HOME INS. CO., COLUMBUS, GA., et al. v. CHOCTAW COTTON OIL CO. et al. |
| Court | Oklahoma Supreme Court |
Rehearing Denied Nov. 24, 1931.
Syllabus by the Court.
In an action to recover on fire insurance policies, where an issue is raised as to whether certain indorsements were made on the policies before or after the fire, a finding of the trial court that they were made prior to the fire will not be set aside on appeal, where there is competent evidence which reasonably supports the finding.
Section 6723, C. O. S. 1921, which provides that any person who shall solicit and procure an application for insurance, in all matters relating to such application and the policy issued in consequence thereof, shall be regarded as the agent of the insurer and not the insured, does not preclude such person from acting as the agent of insured in certain particulars and in a proper case.
The general rule is: Where insured appoints the agent of an insurance company as its agent to procure insurance for it and to change, cancel, and substitute policies, a change made in the policy of insured by such agent acting within the scope of his authority is binding on all parties even though no notice thereof be given insured prior to loss.
Insured entered into a written contract with insurance brokers authorizing them to procure insurance on its property at a rate of 10 per cent. less than the rate provided in expiring policies. The contract further provided that brokers should at their expense, maintain sufficient engineering service and that their engineer should direct such improvements and changes to be made in the property insured as would reduce the fire hazard to a minimum; the reduced rate contracted for being based on proposed improvements calculated to minimize the fire hazard. Held, such contract is not void in the absence of a showing that the contracted rate is discriminatory or in violation of scheduled rates.
Where an adjustment of a fire loss was made and completed by an insurance adjuster and the total loss ascertained and agreed to, but the amount chargeable by the adjuster to a group of companies was erroneous because of coinsurance clauses in the policies, held, the adjustment gave rise to an implied promise to pay the sum justly apportionable to such companies according to the terms of their policies, and such companies will not be required to pay a greater sum because of a misconception and misconstruction of the policies by their adjuster.
Separate causes of action on several policies issued by different insurers to one person on the same property may be joined where the insurers are liable only proportionately.
Appeal from District Court, Pontotoc County; Orel Busby, Judge.
Action by the Choctaw Cotton Oil Company against the American Equitable Assurance Company and others. From the judgment rendered, defendant Georgia Home Insurance Company of Columbus, Ga., and certain other defendants, appeal.
Judgment affirmed.
Rittenhouse Lee, Webster & Rittenhouse, of Oklahoma City, for plaintiffs in error.
McLaury & Hopps and Paul G. Darrough, all of Oklahoma City, and H. F Mathis and Trice & Davison, all of Ada, for defendants in error.
The Choctaw Cotton Oil Company brought this action in the district court of Pontotoc county to recover on certain fire insurance policies against American Equitable Assurance Company, Mercury Insurance Company, and Rhode Island Insurance Company, hereinafter referred to as the Oklahoma companies, and Georgia Home Insurance Company, Girard Fire & Marine Insurance Company, and others, hereinafter referred to as the Florida companies.
There is no dispute as to the loss nor the amount the insured is entitled to recover. The contest is between the Florida companies and the Oklahoma companies as to the manner in which the loss should be prorated.
Plaintiff sustained a loss of $29,006.09, by reason of a fire in its seedhouse located at Jacksonville, Florida. The seedhouse was a part of its cotton seed oil mill plant there located. One of the questions for our determination is the date a certain distribution clause was placed in the policies of the Oklahoma companies. The Oklahoma companies' policies went into effect July, 1925, and covered property at twenty four different locations in an amount set opposite each location. The coverage at Jacksonville was $250,000. Relative to loss, the Oklahoma policies originally contained the following proration clause: "Pro Rato of the Amount set opposite each Location." The total coverage at all locations amounted to $2,356,700. Other companies also had policies on the property at Jacksonville, but these policies were canceled prior to the fire and are not here involved. Upon the cancellation of these policies Fred C. Johnston and Ed M. Semans, insurance brokers located in Oklahoma City and doing business under the name of "Insurance Service Company," acting as agent for the plaintiff and the Oklahoma companies, solicited and procured other insurance on plaintiff's plant at Jacksonville from the Florida companies, which companies covered at that location insurance in the sum of $150,000. The Florida companies' policies contained a distribution average clause which provides: "It is understood and agreed that the amount insured by this policy shall attach in or on each separate building, compartment, structure, platform, yard or car at each of the above named locations in that proportion of the amount hereinbefore insured that the value of the property covered by this policy contained in or on each separate building, compartment, structure, platform, yard or car at each location shall bear to the value of such property contained in or on all the buildings, compartments, structures, platforms, yards or cars at all of the above named locations."
The Oklahoma companies' policies did not originally contain this clause. The American Equitable Assurance Company and Rhode Island Insurance Company each covered $353,500 of the total amount of insurance, which sum was 15 per cent. of the total coverage. The policy of the Mercury Insurance Company covered 10 per cent. of the total, and, by virtue of the original pro rata clause contained in these policies, the combined liability of these companies at Jacksonville would have been $100,000; the amount set opposite the Florida location being $250,000.
The Florida companies contend that by reason of the distribution average clause contained in their policies they are liable only in such proportion as the value of the seedhouse bore to the whole value of the plant located at Jacksonville. It is stipulated that the value of the seedhouse is $32,723.09, and that the value of the entire plant is $275,137.93; that the amount of their insurance on the seedhouse therefore is 32,723.09/275,137.93 of $150,000 or $17,840; that, applying the pro rata clause of the Oklahoma companies, their insurance against the seedhouse is $100,000, thus making the whole insurance against the seedhouse $117,840; that the Florida companies' liability under their policies is 17,840/117,840 of $29,061.09 or $4,398.82; and that the Oklahoma companies are liable for the balance or the sum of $24,662.17. The adjuster...
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