Oklahoma Farm Bureau Mut. Ins. Co. v. Brown

• Decision Date: 16 December 1952
• Docket Number: No. 34965,34965
• Citation: 255 P.2d 919,208 Okla. 317
• Parties: OKLAHOMA FARM BUREAU MUT. INS. CO., Inc. v. BROWN.
• Court: Oklahoma Supreme Court

Page 919

255 P.2d 919

208 Okla. 317

OKLAHOMA FARM BUREAU MUT. INS. CO., Inc. v. BROWN.

No. 34965.

Supreme Court of Oklahoma.

Dec. 16, 1952.

Rehearing Denied April 14, 1953.

SYLLABUS BY THE COURT.

1. Where a fire insurance policy states its effective date and its expiration date, and provides that the policy shall not be binding upon the company unless countersigned by a duly authorized representative of the company, the fact that the countersigning takes place after the effective date of the policy does not operate to extend the expiration date of the policy beyond that stated therein.

2. A fire insurance policy, which states its effective date and its expiration date, is not rendered ambiguous as to the period of coverage by a clause which provides that the policy shall not be binding upon the company unless countersigned by duly authorized representative of the company.

3. Where a policy provides that it shall not be binding upon the company unless countersigned by a duly authorized representative thereof, a delayed countersigning merely confirms the period of liability as set forth in the policy and gives retroactive force to the policy to the date when by its terms the policy became effective.

Pierce, Rucker, Mock, Tabor & Duncan, Oklahoma City, for plaintiffs in error.

Bohanon & Adams and Bert B. Barefoot, Jr., Oklahoma City, for defendant in error.

PER CURIAM.

This is an action to recover upon two fire insurance policies. The sole question for our determination is whether the policies were in force on July 27, 1949, the date of the loss.

The facts, which are not in dispute, are as follows: On January 24, 1949, plaintiff, Howard Brown, made application to defendant, Oklahoma Farm Bureau Mutual Insurance Company, Inc., for policies covering his truck and semi-trailer.

Each application, after detailing various items of information requested, stated that the 'Date Written' was January 24, 1949, and that the 'Date Effective' was also January 24, 1949. The applications were signed by both plaintiff and the agent of the company.

The policies, when written, provided that the Company

'subject to the limitations, exceptions, exclusions, special provisions, general conditions and form of coverage elected * * * does hereby insure [plaintiff], commencing at 12:01 A. M. Standard Time, on the date herein specified and expiring at 12:01 A. M. six (6) months from effective date unless renewed * * *'

Each policy then stated that 'The effective date of this policy is January 24, 1949.'

And each policy concluded as follows:

'In Witness Whereof, the Oklahoma Farm Bureau Mutual Insurance Company, Inc., has caused this policy to be signed by its President and Secretary, but the same shall not be binding upon the company unless countersigned by a duly authorized officer or representative of the company.'

This language, in each case, was followed by the printed signature of the President and Secretary. One policy was countersigned by an authorized representative of the company on the 2nd day of February, 1949, and the other on March 29, 1949.

The record contains copies of first and second notices to plaintiff stating that the policies would lapse on July 24, 1949, unless renewed, but the dates when such notices were given do not appear.

On July 27, 1949, the truck and trailer covered by the policies burned. It will thus be seen that the loss occurred more than six months after the stated effective dates of the policies, but less than six months after such policies were countersigned.

A jury was waived and the case submitted to the court on the agreed facts. The trial court entered judgment for plaintiff on each policy and, from the orders overruling its motion for new trial, defendant appeals.

Defendant argues that the court erred in rendering judgment for the plaintiff since under the undisputed facts the loss occurred more than six months after the stated effective date of the policies and at a time when the policies, by their own terms, were no longer in effect.

Plaintiff, on the other hand, argues that he was entitled to six months coverage and that his coverage did not begin until the policies were countersigned, for, he says, if a loss had occurred prior to that time the company could have avoided liability by refusing to countersign. Consequently, he argues, the policies must be extended for six months from the dates of the countersignatures. Or, he asserts, that if this does not follow as a matter of law, at least the policies are ambiguous and can be construed to mean that they were to continue in effect for six months after the date of the countersignatures.

We are of the opinion that defendant must prevail.

Although the question seems to be one of first impression in this State, it has been raised under almost identical circumstances in several other States, and recovery has been uniformly denied.

In the case of Dillon v. General Exchange Ins. Corporation, Tex.Civ.App., 60 S.W.2d 331, the policy provided on its face that the effective date was March 19, 1931 and the expiration date March 19, 1932. It also provided:

'This policy shall not be valid unless countersigned by the duly authorized agent of the Company at San Antonio, Texas. Countersigned this 31 day of March, 1931, V. Hoover, Agent.'

The insured automobile burned on March 20, 1932, and the plaintiff made the same contention that plaintiff makes here. In denying such contention, the court said:

'Appellant's contention is that regardless of the fact that the policy contained the expressed stipulation that it expired at noon March 19, 1932, it was nevertheless in effect on the night of March 20, 1932, because the policy also contained the stipulation that it was not valid unless countersigned by the duly authorized agent of the company at San Antonio, Tex., and that the policy was actually countersigned on March 31, 1931, that appellant had paid for one year's insurance, that he was therefore entitled to one full year's insurance, and that the policy not having been countersigned until March 31, 1931, should not have expired until March 31, 1932.

'We do not agree with this contention. The insurance company had a lawful right to make this policy effective from a prior date, regardless of the provision that same was not valid unless countersigned by the agent designated. This stipulation had to do with the authenticity of the policy rather than the time from which it should become effective. The policy did not provide that it was not valid until countersigned, but unless countersigned. Until might be construed as referring to time, but unless does not refer to time. Bankers Lloyds v. Montgomery (Tex.Civ.App.) 42 S.W.2d 285; Schwartz v. Northern Life Ins. Co., 9 Cir., 25 F.2d 555; Anderson v. Mutual Life Ins. Co., 164 Okl. 712, 130 P. 726, Ann.Cas.1914B, 903.

'Appellant did not allege that this policy did not contain the true agreement of the parties. In the absence of an allegation of accident, mistake, or fraud, the court could not disregard the plain and unambiguous statement in the policy that the expiration date thereof was at noon March 19, 1932.'

To the same effect are Union Marine & General Ins. Co. Limited v. Holmes, 249 Ala. 294, 31 So.2d 303, and McKee v. Continental Ins. Co., 191 Tenn. 413, 234 S.W.2d 830, 22 A.L.R.2d 980.

A case closely in point from this jurisdiction, although it relates to life rather than fire insurance, is the case of Kansas City Life Ins. Co. v. Harper, 90 Okl. 116, 214 P. 924, 928, wherein plaintiff contended that the annual premiums on a life insurance...