Merchants' & Planters' Ins. Co. v. Marsh

• Decision Date: 14 May 1912
• Citation: 125 P. 1100,34 Okla. 453,1912 OK 388
• Parties: MERCHANTS' & PLANTERS' INS. CO. v. MARSH.
• Court: Oklahoma Supreme Court

125 P. 1100

34 Okla. 453, 1912 OK 388

MERCHANTS' & PLANTERS' INS. CO. v. MARSH.

Supreme Court of Oklahoma

May 14, 1912

Syllabus by the Court.

An objection to a pleading on the ground of a departure must, in this jurisdiction, be raised by a motion to strike. It cannot be raised by demurrer, or by an objection to the introduction of evidence.

A local agent of an insurance company, who has authority from the company to solicit, execute, and deliver contracts of insurance, has power to waive the conditions of the policy such as the "additional insurance clause" and the "incumbrance clause" at the time of the execution and delivery of the policy.

A local agent of an insurance company, whose only power is to solicit applications for insurance, and forward them to the company for approval, when, if approved, the company issues the policy and causes it to be delivered to the insured, has no power to waive any of the provisions of the policy so delivered, and notice to such agent of "additional insurance" taken out by the insured after the delivery of the policy is not notice to the company.

(Additonal Syllabus by Editorial Staff.)

Comp Laws 1909, § 5642, provides that, when an answer contains new matter, plaintiff may reply, denying generally or specifically each allegation controverted by him, and may allege any new matter not inconsistent with the petition and constituting a defense to the new matter in the answer. Held, that where, in an action on a fire policy plaintiff alleged compliance with all the terms and conditions thereof, and defendant answered, alleging a breach of the additional insurance clause without the insurer's consent indorsed on the policy, a reply, admitting the taking out of additional insurance without consent of insurer indorsed on the policy, but alleging that, because of the knowledge thereof and acts of defendant's agent, the clause was waived, constituted a departure.

Commissioners' Opinion, Division No. 2. Error from District Court, Okmulgee County; W. L. Barnum Judge.

Action by H. A. Marsh against the Merchants' & Planters' Insurance Company. Judgment for plaintiff, and defendant brings error. Reversed and rendered.

Davidson & Malloy, of Tulsa, for plaintiff in error.

Stanford & Cochran, of 0kmulgee, for defendant in error.

BREWER C.

This is a suit brought to recover on a fire insurance policy. It was commenced in the district court of 0kmulgee county on October 3, 1908. The policy was issued August 10, 1907. The property insured was destroyed by fire June 2, 1908. The plaintiff in the district court recovered the full amount named in the policy, and is defendant in error in this court.

In the petition filed below the plaintiff declared on the policy, attached copy to his petition as part thereof, alleged the loss of the insured property by fire, the value of the property destroyed, and "that more than 60 days have elapsed prior to the commencement of this suit, after sufficient proof of the loss and damage by fire as aforesaid, and that the plaintiff has duly complied with all the terms and conditions of said policy to be kept or performed." The defendant filed answer, consisting of a general denial, and alleged, as special defenses, a violation by plaintiff of the conditions and terms of the policy, in that he had violated the clause prohibiting additional insurance without consent of the company indorsed on the policy; also that a portion of the goods insured had been removed from the premises without such consent; and also that the title to the property was not as stated in the policy, together with other defenses not necessary to be recited here. To this answer the plaintiff filed a general denial by way of reply. Upon the issues thus presented, a jury was impaneled and the cause proceeded to trial. During the trial plaintiff filed an amended reply, in which he admitted the taking out of additional insurance, and that consent so to do had not been indorsed on the policy, but alleged that, because of the knowledge and the acts of the agent of the company, the said provision had been waived. The plaintiff also met the other special defenses by alleging waivers of the same. The defendant objected to the filing of this reply, and after it was filed moved to strike the same, because it was a departure and inconsistent with the allegations of the petition. Defendant also demurred to the reply. Both motion to strike and the demurrer were overruled by the court, to which exceptions were saved. At the close of the evidence defendant asked a peremptory instruction in its favor, which was refused.

Under our view of the case, only two propositions are necessary to be discussed. They are: First, the action of the court in refusing the motion to strike the reply on the ground of departure; second, the question of additional insurance, and the alleged waiver, and the evidence regarding same.

On the first proposition, that of departure, we think the court materially erred. This is manifest under the former decisions of this court. We are aware that in many Code states this practice is permitted; but in this state, under our Code, it has been held to be a departure, as inconsistent with the petition. The statute relative to what may properly be stated in a reply seems to confine the same to allegations not inconsistent with the petition. The statute is as follows: "Sec. 5642. When the answer contains new matter, the plaintiff may reply to such new matter, denying generally or specifically each allegation controverted by him; and he may allege in ordinary and concise language, and without repetition, any new matter not inconsistent with the petition, and constituting a defense to such new matter in the answer. ***" This statute was construed by this court in a case wherein the pleadings were in a state identical with the case at bar, except that the defect in the case decided was taken advantage of by an objection to the introduction of evidence and by a motion for a judgment on the pleadings. The case referred to is St. Paul Fire & Marine Insurance Co. v. Mountain Park S. F. Co., 23 Okl. 79, 99 P. 647. In that case the court held that there was clearly a departure, but that, inasmuch as it had not been taken advantage of in the proper manner, it was waived; and the court proceeds at length to discuss the question, and examines and collects in the opinion numerous authorities, showing that, in case of a departure, the proper way to raise and save the question is by a motion to strike, as was done in the case at bar. It is almost as essential that there be rules regulating pleadings, and the joining of issues, as that there be pleadings at all; and when a rule has been carefully considered and announced for the guidance of attorneys in an important matter of pleading, it will not do to say that it may be entirely ignored.

We quote somewhat extensively from the case cited above believing such course to be of service to the bar of the state. After stating the facts as suggested above the court say: "That this was a departure there is no doubt, but neither method of assault called the court's attention to a departure in the reply, which could not be taken advantage of under our practice, except by motion to strike, as the same is no ground for demurrer under our statute. 6 Enc. of Pl. & Pr. 468, lays down the general rule thus: 'In most of the United States departure may be taken advantage of by a general demurrer. In other states, however, it has been decided that advantage is to be taken of a departure in an opponent's pleading by a motion to strike out or by an objection to its filing'--citing authorities. We have examined all the works available on code pleading, and in none of them find it laid down or intimated that this defect can be taken advantage of by objecting to the introduction of evidence under the pleadings. The only case called to our attention where it is so held is Johnson v. State Bank of Seneca, 59 Kan. 250, 52 P. 860, which, while admitting the general rule to be as stated supra, cites no authority to support the rule laid down in that case, and we refuse to follow it. Rather will we follow the practice as indicated in a later case decided by that court in Surety Co. v. Bragg, 63 Kan. 291, 65 P. 272, in which was recognized the rule as stated in 6 Enc. Pl. & Pr. 468, supra. In that case the pleadings were in a state identical with those in the case at bar, except that the reply was assailed for a departure by both a demurrer and a motion to strike. The former the court refused to consider, because not filed in time. The latter was heard and overruled, which was so far held to be the proper practice that the same was not questioned. On appeal, the Supreme Court held that in failing to strike the reply the trial court erred, and for that reason...