Palatine Ins. Co. of London, England v. Commerce Trust Co.

• Decision Date: 29 October 1918
• Docket Number: 8503.
• Citation: Palatine Ins. Co. of London, England v. Commerce Trust Co., 175 P. 930, 73 Okla. 236, 1918 OK 611 (Okla. 1918)
• Parties: PALATINE INS. CO. OF LONDON, ENGLAND, v. COMMERCE TRUST CO.
• Court: Oklahoma Supreme Court

175 P. 930

73 Okla. 236, 1918 OK 611

PALATINE INS. CO. OF LONDON, ENGLAND, v. COMMERCE TRUST CO.

No. 8503.

Supreme Court of Oklahoma

Oct. 29, 1918

Syllabus by the Court.

Any provision in a policy of fire insurance written since the 25th day of March, 1909, that is in conflict with the provision of the standard form of policy of this state provided by Act March 25, 1909, and of section 3482, Rev Laws 1910, will not be enforced.

When in an action upon a policy of insurance in the sum of $3,000, for the destruction of an automobile by fire, the evidence is in conflict as to the value of the automobile destroyed, it was reversible error for the court to instruct the jury that, if they found for the plaintiff, they must find for the face value of the policy.

A policy of fire insurance on property in this state, written since the 25th day of March, 1909, cannot liquidate the damages suffered by the amount stated in the policy, as the measure of recovery is the actual value of the property destroyed.

Commissioners' Opinion, Division No. 1. Error from District Court, Garfield County; James B. Cullison, Judge.

Action by the Commerce Trust Company against the Palatine Insurance Company of London, England. Judgment for plaintiff, and defendant brings error. Reversed and remanded.

Scothorn & McRill, of Oklahoma City, for plaintiff in error.

C. H. Parker and P. C. Simons, both of Enid, for defendant in error.

COLLIER C.

This is an action on an insurance policy, brought by the defendant in error against the plaintiff in error. Hereinafter the parties will be designated as they were in the trial court.

The policy was issued to one R. W. Peard upon an automobile, and after the destruction of the automobile by fire the policy was assigned by Peard to the defendant. The policy of insurance, together with the application therefor, was in evidence.

The policy is in the sum of $3,000, and provides against loss or damage to the automobile insured, caused by fire arising from any cause whatsoever. The evidence as to the value of the automobile destoyed is in conflict. The evidence on the part of the plaintiff tended to show that at the time it was destroyed it was of the value of $3,500, while on the part of the defendant the evidence tended to show that it was of the value of $1,200.

The undisputed evidence is that during the life of the policy the automobile was entirely destroyed by fire, and that notice of such destruction of said automobile was given the insurer, as required by the terms of the policy.

The court, among other instructions, instructed the jury as follows:

"You are further instructed that, in the case the plaintiff is entitled to recover the face of the policy of insurance, unless it appears from all the circumstances that R. W. Peard, at the time he made his application for insurance here given, together with statements he made in said application were false, and that said statements, if they were false, materially affected the risk sought to be insured."

To the giving of said instruction defendant duly excepted. The jury returned a verdict for plaintiff in the sum of $3,000, to which defendant duly excepted. Timely motion was made for a new trial, which was overruled and excepted to, and error brought to this court.

It is insisted by the plaintiff that at the time the policy was written, May 20, 1912, the insurance law found in article 2, c. 38, Revised Laws, was not in force, and this contention is an error, from the fact that the said law became effective March 25, 1909, and was enacted subsequent to the cases of Springfield Fire & Marine Insurance Co. v. Homewood, 32 Okl. 521, 122 P. 196, and Farmers' Mutual Ind. Association v. McCorkle, 21 Okl. 606, 97 P. 270, which decisions are not now the law, as they were changed by the act effective March 25, 1909 (Laws 1909, c. 21, art. 2), and said act now being incorporated in the Revised Laws as sections 3481 and 3482.

Section 3481, Revised Laws, provides that:

"No fire insurance company shall issue fire insurance policies on property in this state other than those of the standard form herein set

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