Gish v. Insurance Co. of North America
| Decision Date | 07 September 1905 |
| Citation | 87 P. 869,16 Okla. 59,1905 OK 104 |
| Parties | GISH et al. v. INSURANCE CO. OF NORTH AMERICA. [*] |
| Court | Oklahoma Supreme Court |
Syllabus by the Court.
A stipulation in a fire insurance policy that the insured shall make and keep inventories and books, and keep them in a fireproof safe in some place not exposed to fire which would ignite or destroy the building in which the property insured is situated, and in cases of loss to produce such books and inventories for the inspection of the insurer, and in the event of failure on the part of the insured to produce such books and inventories for the inspection of the insurer that the entire policy shall be null and void, is a reasonable and competent provision to insert in and attach to the policy.
[Ed Note.-For cases in point, see Cent. Dig. vol. 28, Insurance § 853.]
That a contract in writing, if its terms are free from doubt and ambiguity, must be permitted to speak for itself, and cannot by the courts, 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.
[Ed Note.-For cases in point, see Cent. Dig. vol. 20, Evidence §§ 1818-1824.]
It is reasonable and competent for insurance companies to provide in their policies that no officer, agent, or other representative of the company shall have the power to waive such stipulation of warranty, unless indorsed thereon or added thereto.
[Ed. Note.-For cases in point, see Cent. Dig. vol. 28, Insurance, §§ 952, 963.]
Where an insurance policy contains such a stipulation of warranty, and provides that no officer, agent, or other representative of the company shall have the power to waive any condition or provision of the policy, unless such waiver shall be written upon or attached thereto, such limited grant of authority is the measure of their power.
[Ed. Note.-For cases in point, see Cent. Dig. vol. 28, Insurance, § 952.]
The rules announced in the case of Liverpool & London & Globe Ins. Co. v. T. M. Richardson Lumber Co., reported in 69 P. 935, 11 Okl. 585, approved and followed.
It is always open for the insured to show a waiver of the conditions contained in a policy of fire insurance, or a course of conduct on the part of the insurer which gave him just and reasonable ground to infer that a forfeiture would not be exacted.
[Ed. Note.-For cases in point, see Cent. Dig. vol. 28, Insurance, §§ 1026, 1027.]
Where a waiver of the conditions in a fire insurance policy is relied upon by the insured, he must show that the insurer, with knowledge of the facts that occasioned the forfeiture, dispensed with the observance of the condition that, where the waiver relied on is the act of an agent, it must be shown either that the agent had express authority from the insurer to make the waiver, or that the insurer subsequently, with knowledge of the facts, ratified the action of the agent.
[Ed. Note.-For cases in point, see Cent. Dig. vol. 28, Insurance, §§ 948, 1026, 1027.]
A waiver may be established by proof of such facts and circumstances as would reasonably result in that conclusion.
[Ed. Note.-For cases in point, see Cent. Dig. vol. 28, Insurance, §§ 1026, 1028.]
Under the facts as disclosed by the record in this case, held, that the question of waiver was a question of fact, to be determined by the jury under proper instructions, and that the court erred in sustaining the demurrer to the evidence and in taking the case from the jury.
The case of Liverpool & London & Globe Ins. Co. v. T. M. Richardson Lumber Co. distinguished. 69 P. 935, 11 Okl. 585.
Error from District Court, Caddo County: before Justice B. F. Burwell.
Action by Moses N. Gish and others against the Insurance Company of North America. Judgment for defendant, and plaintiffs bring error. Reversed and remanded.
A. J. Morris, for plaintiffs in error.
Glitsch & Glitsch and H. H. Howard, for defendant in error.
On the 9th day of October, 1903, the plaintiffs in error commenced this action against the defendant in error in the probate court of Caddo county to recover the sum of $500, as due under the terms of a policy of fire insurance that had been issued by the defendant in error to the plaintiffs in error on the 1st day of July, 1903, on a stock of furniture situated in Anadarko, and which was, on the 29th day of July, 1903, destroyed by fire. After issues joined, trial was had in the probate court, resulting in a judgment for the plaintiffs in the sum of $500, the amount claimed. The cause was appealed to the district court of Caddo county, and on the 24th day of May, 1904, a jury was impaneled, and after the plaintiffs had introduced their evidence and rested, the defendant demurred to the evidence. The demurrer was by the court sustained, and judgment rendered against the plaintiffs for costs. A motion for a new trial was heard and overruled, and exceptions saved. The plaintiffs bring the case here upon petition in error and case made for review.
Attached to the policy is a slip containing a warranty that the plaintiffs should make an itemized inventory of the stock insured at least once in each calendar year, and that, unless such inventory had been taken within 12 months prior to the date of the policy, the same should be taken in detail within 30 days after its date, or that the policy should be void; and that the insured should keep a set of books which should clearly and plainly present a complete record of the business transacted, including all purchases, sales, and shipments of said stock, both for cash and credit, from the date of the inventory provided for and during the continuance of the policy, and that the plaintiffs should keep such books and inventory, and also the last preceding inventory, securely locked in a fireproof safe at night, in some place not exposed to fire which would ignite or destroy the building in which the stock insured is situated, and in case of loss that they should produce such books and invoices for the inspection of the defendant. In the event of failure on the part of the insured to keep and produce such books and invoices for the inspection of defendant, the entire policy should become null and void, and such failure should constitute a perpetual bar to any recovery thereon. At the time that the policy was issued, the firm of Perry & Farmer were the local agents for the defendant at Anadarko, with power to receive applications for insurance against loss or damage by fire, and fix rates of premiums, to receive moneys, and to countersign and to issue policies signed by the president and attested by the secretary of defendant, and to attend to such other duties as pertain to the business of the agency, subject to the rules and regulations of the company, and to such instructions as may from time to time be given by defendant's officers and managers. In the petition plaintiffs allege that they accepted the policy with the express understanding that the safe clause should not be binding upon them. The books and inventories were not kept in a fireproof safe by plaintiffs, as required by the terms of the policy, but were kept in a desk in the building with the stock of furniture, and were destroyed with the stock of furniture. The plaintiffs at the trial offered to prove by Mr. Gish, while on the stand as a witness, that at the time the policy was issued defendant's agents, Perry & Farmer, visited and inspected the goods insured, and at the time they issued the policy knew that the plaintiffs had no fireproof safe, and knew that they would not keep the books and papers in a fireproof safe, and that plaintiffs were informed by Perry & Farmer that the fireproof safe clause would not be insisted upon by the defendant; and with this understanding the policy was accepted by the plaintiffs, which evidence was by the court, over the objection and exception of the defendant, excluded.
It is insisted by plaintiffs that, as the policy was issued, delivered, and the premium accepted with knowledge by defendant's agents, facts existed which would constitute a breach of the conditions of the policy, and that they assured the plaintiffs that such a breach would not be insisted upon; that the defendant cannot, since the fire occurred, take advantage of such breach, and that the court erred in excluding the evidence offered.
The policy contains the further provision: "And no officer agent, or other representative of this company shall have power to waive any provision or condition of this policy, except such as by the terms of this policy may be the subject of this agreement indorsed hereon or added hereto." The clear purpose of this evidence was to show that the contract expressed in the policy was not in reality the contract as made, and to receive such evidence for the purpose of raising an estoppel would be a mere evasion of the rule excluding parol evidence when offered to alter or change the terms of a written contract. The defendant cannot be estopped from making the defense that the contract as set forth in the policy sued on is its contract, or that the plaintiffs have violated it in this particular, which are made conditions to their right under it, on the ground of negotiations and transactions occurring prior to and at the time the contract was entered into, unless the plaintiffs are permitted to show by parol testimony that the contract, as put in writing does not truly set forth and express the intentions of the parties, as an estoppel could not arise except upon proof of a contract different from that contained in the policy. By the express terms of the policy, the authority of Perry & Farmer, so far as to waive any provision or...
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