Palatine Ins. Co. v. Lynn

• Decision Date: 14 July 1914
• Docket Number: 3626.
• Citation: 141 P. 1167,42 Okla. 486,1914 OK 336
• Parties: PALATINE INS. CO. v. LYNN.
• Court: Oklahoma Supreme Court

141 P. 1167

42 Okla. 486, 1914 OK 336

PALATINE INS. CO. v. LYNN.

No. 3626.

Supreme Court of Oklahoma

July 14, 1914

Syllabus by the Court.

In an action on a fire insurance policy, which provides that in case of loss the insured will give immediate notice to the insurer, and within 60 days thereafter furnish proofs of loss, testimony that such proofs of loss were furnished is necessary in order to establish a cause of action, unless the same has been waived by the insurer.

A waiver of proofs of loss must be pleaded in the petition in order that the evidence thereof may be admissible at the trial. Such proofs are not waived by an answer setting up other grounds as a defense to the action.

Where it is alleged in the petition that the proofs of loss were furnished as provided in the policy, these allegations are put in issue by the general denial in the answer, and, if at the trial no evidence is offered that such proofs had been furnished, there is a failure of proof, and a demurrer to the evidence is well taken on the ground that the testimony is not sufficient to support a judgment against the insurer, and the motion for an instructed verdict for the defendant is likewise well taken.

Commissioners' Opinion, Division No. 2. Error from District Court, Marshall County; A. H. Ferguson, Judge.

Action by G. E. Lynn against the Palatine Insurance Company. Judgment was for the plaintiff, and defendant brings error. Reversed.

Burwell Crockett & Johnson, of Oklahoma City, for plaintiff in error.

Chas A. Coakley and F. E. Kennamer, both of Oklahoma City, Summers Hardy, of Hugo, Wm. M. Franklin, of Madill, and D. A Richardson, of Oklahoma City, for defendant in error.

GALBRAITH C.

This action was commenced on the 5th day of October, 1909, to recover the amount of a fire insurance policy issued July 9 1909, for a term of one year, covering a cotton gin property which it was charged was totally destroyed by fire on August 25, 1909. When the cause was called for trial on the 17th day of November, 1911, the plaintiff, by permission of the court, filed an amended petition, which charged, in brief, the entering into the contract of insurance between the plaintiff and defendant, attaching a copy of the policy thereto, the loss of the property, and its value, and further charged "that plaintiff furnished the defendant with notice of destruction of said property and proof of loss within the time and in the manner prescribed by said policy of insurance; that said defendant refused to pay said loss or any part thereof, and has notified the plaintiff that it will not pay same. That plaintiff has performed all the conditions of said policy of insurance on its part," and charged the refusal to pay by the defendant the amount of the policy or any part thereof, and prayed for judgment in the amount of the policy and interest thereon from November 1, 1909. The answer filed by the company was a general denial and the affirmative defense that the plaintiff was not the unconditional owner of the real estate upon which the property insured was located, and also that he erected a sawmill within 100 feet from the gin, and operated the same in violation of the expressed terms of the policy. The cause was tried to the court and a jury. At the close of the plaintiff's evidence, the insurance company interposed a demurrer which was overruled and exceptions taken, and then presented a motion for a directed verdict in its favor. The demurrer to the evidence and the motion for a directed verdict were based upon the ground that the evidence was not sufficient to sustain a judgment in favor of the plaintiff and against the defendant. On the overruling of the motion, the defendant refused to introduce evidence, and the court instructed the jury as to the law arising upon the issues and submitted the cause, and a verdict was returned in favor of the plaintiff and against the defendant for the full amount of the policy. Motion for new trial was filed and overruled, and exceptions saved, and the insurance company has perfected an appeal to this court.

Among the errors assigned and argued are the ruling of the trial court in overruling the demurrer to the plaintiff's evidence, and also in denying the motion for an instructed verdict for the defendant.

The policy in suit is the standard form of policy and contains the usual covenants as to giving notice of loss and furnishing proof of loss within 60 days thereafter. In the proof of plaintiff's case there was no testimony of any kind or character that the plaintiff gave to the company a notice of the fire or furnished it with the proof of loss as required by the terms of the policy. It is insisted by the company that, in the absence of this proof, the evidence was not sufficient to support a judgment against it. In...