Owen v. U.S. Sur. Co.

• Decision Date: 04 February 1913
• Docket Number: Case Number: 37611,Case Number: 37612
• Citation: 1913 OK 81,131 P. 1091,38 Okla. 123
• Parties: OWEN v. UNITED STATES SURETY CO.
• Court: Oklahoma Supreme Court

1913 OK 81

131 P. 1091

38 Okla. 123

OWEN v. UNITED STATES SURETY CO.

Case Number: 37611

Case Number: 37612

Supreme Court of Oklahoma

Decided: February 4, 1913

Syllabus

¶0 1. PLEADING--Proof of Execution--Necessity. Where an action is founded on a written instrument, and the petition sets forth the same in full, an answer not verified does not put in issue the execution of such written instrument, and there is no necessity for proving the same on trial.

2. INSURANCE--Validity--Breach. A misrepresentation renders the policy void on the ground of fraud, whilst noncompliance with a warranty operates as an express breach of the contract.

3. FRAUD--Procurement of Contract--Quantum of Proof. In this jurisdiction, where fraud is alleged in the procuring of a written instrument, the proof must sustain the allegations by a preponderance of the evidence so great as to overcome all opposing evidence and repel all opposing presumptions of good faith.

4. INSURANCE--Fraud in Procurement--Burden of Proof. Under section 3784, Comp. Laws 1909 (Rev. Laws 1910, sec. 6685), the burden of proof to establish the materiality of a misrepresentation or concealment, as well as the fraudulent intent of the insured, is upon the insurance company, and the burden is not shifted where it is shown that the insured made an untrue answer concerning other insurance, for if there be a presumption that his failure to mention it was intentional, this is met by the presumption that a man does not make a fraudulent misstatement, and the question is therefore for the jury, upon all the evidence.

Error from District Court, Oklahoma County Geo. W. Clark, Judge.

Action by Lula Owen against the United States Surety Company, a corporation. Judgment for defendant, and plaintiff brings error. Reversed and remanded for new trial.

F. E. Riddle, for plaintiff in error.

Shartel, Keaton & Wells, for defendant in error.

KANE, J.

¶1 In the trial court it was agreed by counsel that the issues in the above-entitled cause were practically the same as in Continental Casualty Co. v. Owen, ante, 131 P. 1084. In this court the action of the trial court in directing a verdict in favor of the defendant raises a few additional questions of law, which were not involved in the case of Continental Casualty Co. v. Owen, supra, and it will be such questions only that will be noticed herein. The additional contentions may be stated as follows: (1) As the original policy of insurance was only attached to plaintiff's petition as an exhibit, the court could not consider the provisions contained in the schedule of warranties thereof, unless said policy had been introduced in evidence, and, as this was not done for the purpose of showing the provisions of the schedule of warranties, the court should not have considered such warranties and taken the case from the jury upon the ground that the evidence showed a breach thereof. (2) The defendant's evidence did not show that Edward G. Owen had other accident insurance at the time of the execution and delivery of the policy sued on herein, and therefore there was a failure to show a breach of clause 10 of the schedule of warranties indorsed on the policy sued on to the effect that the insured had no accident insurance and no health insurance, except $ 5,000 accident in the Continental Casualty Company.

¶2 The first contention is not well taken. The original policy was attached to plaintiff's petition, marked Exhibit A. Defendant's answer admitted the execution and delivery of the policy, and alleged that it was not liable to plaintiff in any sum thereon, for the reason that the insured made certain false representations of material facts to defendant for the purpose of procuring the issuance of said policy. The answer was not verified, and plaintiff filed an unverified reply, wherein she denied that insured made any false or fraudulent representations in regard to the amount of his insurance or of any application for insurance or as to the condition of his health, but did not deny the written statements set up in defendant's answer, which it was alleged were contained in the policy itself. Section 5648, Comp. Laws 1909 (Rev. Laws 1910, sec. 4759), provides:

"In all actions, allegations of the execution of written instruments and indorsements thereon of the existence of a corporation or partnership, or of any appointment of authority, or the correctness of any account duly verified by the affidavit, of the party, his agent or attorney, shall be taken as true unless the denial of the same be verified by the affidavit of the party, his agent or attorney."

¶3 In Mo. River, Ft. Scott & G. R. Co. v. Wilson, 10 Kan. 105 (star page 105), it was held:

"Where an action is founded on a written instrument, and the petition sets forth the same in full, an answer not verified does not put in issue the execution of such written instrument, and there is no necessity for proving the same on the trial."

¶4 Other Kansas cases to the same effect are Reed v. Arnold, 10 Kan. 85 (star page 102): Walker v. Fleming, 37 Kan. 171, 14 P. 470; Board of Education v. Shaw, 15 Kan. 33. There are several Oklahoma cases which follow the decisions of Kansas, from which state we borrowed the statute; the latest ones, where all the authorities are cited, being Long v. Shepherd, 35 Okla. 489, 130 P. 131, and Tate v. Stone, 35 Okla. 369, 130 P. 296. The second contention must be sustained. The evidence offered tending to show a breach of the warranties was as follows:

"Judge Keaton: Before we read any more depositions, I believe, we will offer this other insurance policy. We now offer in evidence, just for the purpose of showing the date of issuance and the amount and kind of policy, the Maryland Casualty Company of

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