Syllabus by the Court.
1. It
is a fundamental rule of law that parol contemporaneous
evidence is inadmissible to contradict or vary the terms of a
valid written instrument.
2. When
parties have deliberately entered into a written contract in
such terms as import a legal obligation, without any
uncertainty as to the object or intention of such
transaction, it is conclusively presumed that the whole
transaction of the parties, and the extent and manner of
their undertaking, was reduced to writing; and all oral
testimony of previous negotiations or statements, between the
parties, or contemporaneous therewith, are merged in the
written instruments, in the absence of fraud or mutual
mistake of the parties.
3. A
contract in writing, if its terms are free from doubt or
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 and this principle is applicable to contracts of
insurance.
4. A
stipulation in an insurance policy, which reads
"Warranted by the assured that a clear space of 200
feet, tramways excepted, shall always be maintained between
the lumber hereby insured and any mill or other manufacturing
establishment, or else this policy shall be void", is a
reasonable and competent provision to insert or attach to the
policy.
5. 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.
6.
Where an insurance policy contains such a stipulation of
waranty, and provides that no officer, agent, or there
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.
7.
Where such limitation is expressed in the policy, the assured
is presumed to have notice and knowledge of such limitation
and is bound thereby.
8.
Where the waiver relied on is the act of an agent of the
insurance company, it must be shown that the agent had
express authority from the company to make the waiver, or
that the company subsequently, with knowledge of the facts
ratified the unauthorized action of the agent.
On
rehearing. Reversed. For former opinion, see 69 P. 936.
When
parties have deliberately entered into a written contract
without any uncertainty as to the object of the transaction
it is conclusively presumed that the whole transaction was
reduced to writing, and previous negotiations or statements
between parties are merged in the written instrument.
The
assured is presumed to have notice of the limitation of the
authority of an agent to waive conditions in policy, when it
is written therein.
This
was an action brought by the T. M. Richardson Lumber Company
against the Liverpool & London & Globe Insurance Company to
recover upon a fire insurance policy issued on December 7,
1896, for loss occasioned by fire June 12, 1897. In order
that the important questions presented in this case may be
better understood in the application and discussion of the
opinion, we deem it proper to fully define the issues upon
which the case was tried. The material averments, in the
petition are as follows: "That the defendant, the
Liverpool & London & Globe Insurance Company, is a foreign
corporation, duly incorporated and doing a general fire
insurance business in the territory of Oklahoma, and having
local office at Oklahoma City, Oklahoma county, territory of
Oklahoma. That on the 7th day of December, 1896, for a
valuable consideration, the defendant, the said Liverpool & London & Globe Insurance Company, entered into a contract
whereby it undertook to insure, and did insure, the plaintiff
from all direct loss or damage by fire for a period of one
year, extending and continuing from 12 o'clock noon of
December 7, 1896, to and until 12 o'clock noon of
December 7, 1897, to an amount not exceeding twelve hundred
dollars ($1,200) on its certain stock of lumber, lath,
shingles, posts, pickets, sash, and doors, while contained in
the sheds and yard situated on the north side of the C. O. & G. Railroad, in the town of Red Oak, I. T. That a copy of
said contract of insurance, made, executed, and delivered by
the defendant to the plaintiff as aforesaid, is hereto
attached, marked 'Exhibit A,', and made a part of
this petition. That on the 12th day of June, 1897, a fire
occurred at plaintiff's yard in Red Oak, I. T., and
entirely consumed by the property contained in the said yard
and shed, and described in the contract of insurance
aforesaid. That the value of said property at the time of
said fire was the sum of one thousand dollars. That the same
was totally destroyed thereby, to the plaintiff's loss in
the sum of one thousand dollars ($1,000). That the defendant
was promptly notified of the fire, and of the loss occurring
thereby, and within sixty days after the date of said fire
'proof of loss' was made out as stipulated in said
policy, and delivered to the defendant's agent at
Oklahoma City. That the plaintiff has done and performed each
and every condition on its part as stipulated in said
contract. That the defendant has failed and neglected to
adjust or pay the loss accruing to the plaintiff by reason of
said fire, and as it agreed to do in said contract of
insurance, to plaintiff's damage in the sum of one
thousand dollars."
The
defendent's answer to the petition consisted of a DP The
defendant's answer to the petition consisted of a general
denial. Thereupon the plaintiff, by leave of court, filed the
following amended petition: "Comes now the said
plaintiff, by leave of court, first had, complains of said
defendant, for that: (1) The plaintiff is a corporation duly
organized and existing under the laws of said territory. (2)
The defendant is a corporation duly organized and existing
under the laws of ___ but at all times herein mentioned has
been and is doing business as an insurer of property against
loss by fire in the Indian Territory and the territory of
Oklahoma, and maintaining an office and agent at Oklahoma
City, said county. (3) On December 7, 1896, the plaintiff
being the owner of and having an insurable interest in a
certain stock of
lumber, lath, shingles, posts, pickets, sash, and doors,
contained in sheds and yard situated on the north side of the
Choctaw, Oklahoma & Gulf Railroad, in the town of Red Oak, in
the Indian Territory, the plaintiff and defendant entered
into a certain contract in writing, the same being upon a
valuable consideration duly paid by plaintiff to defendant,
commonly called a 'policy of insurance,' a true, copy
of which is attached to the original petition herein, marked
'Exhibit A , ' which is hereby made a part hereof,
hereby the defendant insured the plaintiff against all direct
loss or damage by fire on said property while located as
therein set forth for a term of one year from December 7,
1896, at noon, to December 7, 1897, at noon, in the sum of
$1,200; and the said contract was made and policy issued at
said Oklahoma City. (4) On June 12, 1897, and while the
plaintiff was till the owner and in the possession and
occupancy of said property, and while the same was located in
the said yard and sheds, a fire occurred therein, whereby the
same was wholly consumed and destroyed, the value of the same
at that time being $1,000, and consisting of 125,000 feet of
dressed and undressed lumber, whereby by direct loss from
such fire the plaintiff was injured and damaged in said sum
of $1,000. (5) Immediately after such fire the plaintiff duly
notified the defendant of such loss in writing, and within
less than sixty days after such loss the plaintiff rendered a
statement to defendant, duly signed and sworn to by
plaintiff's officer and agent, stating the knowledge and
belief of plaintiff as to the time and origin of said fire,
and the interest of the insured and of all others therein,
and the other matters and things required by the terms of
said policy, which statement of proof of loss was duly
delivered to and received by said defendant, and retained by
it without objection thereto, nor was an appraise or any
further statement required by it in accordance with the terms
of said policy. (6) The plaintiff in all things has done and
performed the acts and things required of it by the terms of
said policy, and attended to all requirements of defendant
made in accordance therewith, except in this: That to said
policy of insurance is attached a certain condition entitled
'Lumber Space clause' in these works, to wit,
'Warranted by the assured that a clear space of 200 feet,
tramways excepted, shall always be maintained between the
limber hereby insured and any mill or other manufacturing
establishment, or else this policy shall be void.' But
plaintiff says that immediately prior to the making of said
contract of insurance the agents of the defendant, duly
authorized so to do, made personal examination of the
property covered by said policy, and its situation, well
knowing that such clear space did not exist and would not be
made, and prior to and at the time of entering into said
contract and issuing said policy waived said condition and
agreed to accept such risk as attended said contract, with
said property, its location and situation unchanged in every
particular; but defendant has neglected and refused to
adjust, settle, or pay said damage and loss, although demand
therefor has been made. Where fore the...
