Home Ins. Co. of N.Y. v. Coker

• Decision Date: 14 July 1914
• Docket Number: 3681.
• Parties: HOME INS. CO. OF NEW YORK v. COKER.
• Court: Oklahoma Supreme Court

142 P. 1195

43 Okla. 331, 1914 OK 330

HOME INS. CO. OF NEW YORK v. COKER.

No. 3681.

Supreme Court of Oklahoma

July 14, 1914

Rehearing Denied Aug. 25, 1914.

Second Petition for Rehearing Denied Sept. 8, 1914.

Syllabus by the Court.

Record examined and held: (1) That there was no such change in the title or interest as to constitute a violation of the clause of the policy which provides in effect that, in case any change shall take place in the title or interest or possession of the property insured, the policy shall be null and void; (2) that the interest of the assured was a leasehold; (3) that such interest is insurable.

Any legal or equitable estate, or any right which may be prejudicially affected, or any liability which may be brought into operation, by a fire, will confer an insurable interest.

Error from County Court, Comanche County; James H. Wolverton Judge.

Action by J. E. Coker against the Home Insurance Company of New York. Judgment for plaintiff, and defendant brings error. Affirmed.

Scothorn Caldwell & McRill, of Oklahoma City, for plaintiff in error.

Stevens & Myers, of Lawton, for defendant in error.

KANE C.J.

This was an action on a fire insurance policy, commenced by the defendant in error, plaintiff below, against the plaintiff in error, defendant below. Upon trial to the court, there was judgment in favor of the plaintiff in the sum of $250, to reverse which this proceeding in error was commenced.

It is contended, on the part of the plaintiff in error, that there is no evidence tending to support the judgment of the court below, (1) because the evidence shows such change in the title or interest of the assured as to constitute a violation of a certain clause of the policy which provides in effect that, in case any change shall take place in the title or interest or possession of the property insured, the policy shall be null and void; (2) that, at the time the fire occurred, the assured had no insurable interest in the property destroyed. We are unable to agree with counsel for plaintiff in error. It seems that the house destroyed was erected upon an Indian allotment by the assured, pursuant to the terms of a certain lease, which had been duly assigned to him within two or three months prior to the date of its expiration. The lease contained the following provision:

"That he (the lessee) will not remove therefrom any houses, buildings, fences, or other improvements erected thereon during the time for which said land is hereby leased by him, but said houses, buildings, fences or other improvements shall remain a part of said land and become the property of the party of the first part as a portion of the consideration for this lease in addition to the other considerations herein named, and that he will surrender and return said land and premises at the expiration of this lease in as good condition as when received, ordinary wear and tear in the proper use of the same for the purpose herein indicated and unavoidable accidents excepted."

This lease was in force and the assured was in possession of the premises thereunder at the time the policy of insurance was written. The lessee was bound to surrender the premises on January 1, 1910,...