Ohio Farmers Insurance Co. v. Cochran

• Decision Date: 28 March 1922
• Docket Number: 17091
• Citation: 135 N.E. 537,104 Ohio St. 427
• Parties: The Ohio Farmers Insurance Co. v. Cochran
• Court: Ohio Supreme Court

135 N.E. 537

104 Ohio St. 427

The Ohio Farmers Insurance Co. v. Cochran

No. 17091

Supreme Court of Ohio

March 28, 1922

Insurance - Definition - Law of contracts governs, when - Substantial performance sufficient, when - Waiver of terms or stipulations - Written or oral and acts or conduct - Policy provisions not conclusive, when - Question of fact and burden of proof - Charge to jury.

1. An insurance policy is a contract between the insured and the insurer, whereby for an agreed premium one party undertakes to compensate the other for loss on a specified subject by specified perils.

2. The long and uniformly settled rule as to contracts requires only a substantial performance in order to recover upon such contract. Merely nominal, trifling, or technical departures are not sufficient to breach the contract.

3. A waiver of any of the terms of a contract may be either by subsequent contract, written or oral, or by the acts and con-duct of the parties.

4. A written provision in a policy, "No officer, agent, or adjuster, or other representative, shall have power to waive or alter any of the provisions or conditions of this policy * * * unless when actually endorsed hereon or added hereto by such officer, agent, or adjuster," etc., does not prevent a waiver of any provision of the policy by the acts and conduct of the Insurance company by its duly authorized officers or agents.

5. A waiver properly pleaded, to support which relevant proof has been offered, in a trial to a jury, becomes a question of fact for the determination of the jury, the burden of proving which by a preponderance of the evidence Is upon the party relying upon the waiver.

6. A charge of the trial court upon the subject of waiver must be considered as a whole so far as it applies to the subject of waiver. If, judged by its four corners, the charge upon that subject fairly and correctly states the law applicable to the pleadings and the evidence, the cause, upon review, should not be reversed merely because it is possible the jury may have been misled. The question should be: was the jury probably misled in a matter materially affecting the complaining party's substantial rights?

The plaintiff, J. M. Cochran, brought an action in the Common pleas court of Logan county against The Ohio Farmers Insurance Company to recover for loss by fire on three several insurance policies, averring that he had fully performed each and all of the several things to be done by him set forth in the policies, save and except the formal "proof of loss" within sixty days from the time of the fire.

He further pleaded, however, that the company by its knowledge and conduct had waived this provision in each one of the several policies.

The insurance company demurred to this cause of action in the amended petition, and upon the demurrer being overruled denied the facts.

The insurance company further pleaded that the plaintiff Cochran, had falsely and fraudulently misstated the values purporting to be insured; had falsely and fraudulently misrepresented material statements of fact to the prejudice of the company; had refused to permit any person to enter the burning building and save the contents thereof; and, lastly, had made false and fraudulent statements as to the amount of the loss; for all of which the plaintiff, Cochran, ought not to recover against the defendant.

The cause was finally tried upon its merits, submitted to the jury under instructions of the court as to the law, and a verdict returned in favor of Cochran.

Motion for new trial was overruled, and judgment entered on the verdict. Error was prosecuted to the court of appeals, which affirmed the judgment below, but certified the record to this court for review upon the ground of conflict, which appears in the following language:

"The court hereby find that the judgment upon which they have agreed in the above entitled cause is in conflict with a judgment pronounced upon the same question by another Court of Appeals of the state, namely, the Court of Appeals of the Sixth District, in the case of The Northern Assurance Company v. Frank F. Kehoe, in Lucas county, Ohio, decided June 2nd 1913."

Mr Frank Taggart and Messrs. Miller & Middleton, for plaintiff in error.

Mr W Clay Huston and Messrs. West & West, for defendants in error.

WANAMAKER J.

In the petition in error filed in the court of appeals there are thirty separate assignments of error, which involve repetitions, super refinements, trifling and technical distinctions, such as long ago should have been omitted from the standard practice of the law, in the interest of simplified, substantial justice.

As a rule cases involve but one pivotal point; sometimes two; rarely three. The other points raised are only chaff and shuck. So, here, the first substantial error entitled to consideration in this opinion relates to the alleged false and fraudulent statements of the insured touching the insurance and touching the loss by fire. These are questions of fact that were submitted to the jury upon the evidence tendered by the parties to the cause.

The jury found against the insurance company, and unless there was error in the charge of the court touching matters materially affecting the substantial rights of the party, to the prejudice of such party, the finding of the jury as to such matters of fact must control this court. This is, after all, only elementary.

No serious complaint is made of the charge of the court upon the subject of fraud upon the part of the insured, and the reading of the charge of the court in that behalf discloses that there was no prejudicial error.

There is but one remaining question in the case, upon which, after all, the defense was...