Merchants' & Planters' Ins. Co. v. Crane
| Citation | 128 P. 260,36 Okla. 160,1912 OK 731 |
| Parties | MERCHANTS' & PLANTERS' INS. CO. v. CRANE. |
| Decision Date | 19 November 1912 |
| Court | Supreme Court of Oklahoma |
Syllabus by the Court.
Same as paragraph 1 of the syllabus in Trower v. Roberts, 30 Okl. 215, 120 P. 617.
Same as paragraph 2 of the syllabus in Offutt v. Wagoner, 30 Okl. 458, 120 P. 1018.
Same as paragraph 4 of the syllabus in Chicago, R.I. & P. Ry. Co v. Bankers' National Bank, 122 P. 499.
Additional Syllabus by Editorial Staff.
Where the petition on a fire insurance policy alleges a written settlement with the insured, evidence of a parol settlement was not a total failure of proof within Comp. Laws 1909, § 5675, providing that when the allegation of the claim or defense to which the proof is directed is unproven, not in some particular or particulars only, but in its general scope and meaning, it is a failure of proof, but such proof is a variance within sections 5673 and 5674, providing that no variance is to be deemed material unless it have actually misled the adverse party to his prejudice, and, when a variance is not material, the court may direct the fact to be found according to the evidence, and may order an immediate amendment without cost.
Commissioners' Opinion, Division No. 1. Error from Muskogee County Court; W C. Jackson, Judge.
Action by Laura Crane against the Merchants' & Planters' Insurance Company. Judgment for plaintiff, and defendant brings error. Affirmed.
Davidson & Williams, of Tulsa, for plaintiff in error.
W. F Schuermeyer, of Oakland, Cal., for defendant in error.
The plaintiff sued the defendant on account of a fire loss covered by its policy. Some time after the fire the parties agreed upon a settlement, by which the plaintiff was to accept $700 as a compromise of the defendant's liability. The petition, referring to this compromise, alleged: "On the 20th day of February, 1909, the said defendant corporation, acting through a duly authorized agent, did agree upon a compromise and settlement of the said liability and loss under the said policy as aforesaid, and did enter into its written agreement of settlement with the plaintiff herein under the terms of which said defendant corporation agreed to pay to this plaintiff the sum of $700 cash; said written agreement now being in the possession of the defendant corporation." The defendant denied the execution of any such written instrument. The jury was waived, and the case tried to the court. The plaintiff offered evidence to the effect that the compromise was made, but that the agreement was not reduced to writing, but there was some evidence tending to show that there was a memorandum made of the agreement. This evidence was all offered over the objection of the defendant, the objection being based on the ground that the petition alleged a written agreement, while the evidence tended to show an oral one. After the evidence had been offered, the court allowed the plaintiff to amend the petition to conform to the proof, and judgment was rendered for the plaintiff. The errors assigned are that the court erred in admitting the evidence; that the court erred in overruling the defendant's motion to strike the evidence; that the court erred in overruling the demurrer to the evidence; that the court erred in allowing the amendment and in rendering judgment.
For the purpose of this decision, it may be conceded that the evidence was incompetent, because it tended to prove a parol agreement, instead of a written one, while the petition alleged the execution of a written agreement. But, if the amendment was properly made, these questions become immaterial, and the only material question in the case, therefore, is whether the amendment was reversible error.
Comp. Laws 1909, §§ 5673, 5674, 5675, are as follows:
Section 5673: ...
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