Phillis Development Co. v. Commercial Standard Ins. Co.

• Decision Date: 22 July 1969
• Docket Number: No. 42076,42076
• Parties: PHILLIS DEVELOPMENT COMPANY, a corporation, Plaintiff in Error, v. COMMERCIAL STANDARD INSURANCE COMPANY, and North American Insurance Company, corporations, Defendants in Error.
• Court: Oklahoma Supreme Court

Page 558

457 P.2d 558

PHILLIS DEVELOPMENT COMPANY, a corporation, Plaintiff in Error, v. COMMERCIAL STANDARD INSURANCE COMPANY, and North American

Insurance Company, corporations, Defendants in Error.

No. 42076.

Supreme Court of Oklahoma.

July 22, 1969.

Syllabus by the Court

Judgment on opening statement of counsel is proper only where such statement positively affirms or admits facts clearly precluding recovery by plaintiff, or clearly showing no defense by defendants to cause of action alleged by plaintiff.

Appeal from Common Pleas Court of Oklahoma County; Carl Traub, Judge.

Action to recover for loss under alleged parol insurance contract. Trial court awarded judgment to insurer on the opening statement to the jury by plaintiff's counsel and plaintiff appeals. Reversed and remanded.

Berry & Berry, Oklahoma City, for plaintiff in error.

Duvall, Head, McKinney & Travis, By Robert H. Mitchell, Oklahoma City, for defendants in error.

McINERNEY, Justice.

Plaintiff in its petition alleged that it had obtained from defendant insurance company, through the defendant insurance agent, a policy of insurance covering public liability on a particular motor vehicle; that it thereafter sought to enlarge the coverage of the policy to include collision risk. Plaintiff further alleges that in the parol negotiations on the proposed additional coverage plaintiff by an authorized officer agreed to buy and the defendant insurance agent agreed to sell an insurance policy issued by defendant insurance company which would include the collision risk coverage. It was also then allegedly agreed that the policy would be issued bearing an effective date coinciding with the expiration of the existing policy which did not cover collision loss. Plaintiff further alleged issuance of the policy effective at the agreed time but omitting collision coverage. Plaintiff did not seek to reform the policy but seeks to enforce the separate oral contract. Glens Falls Ins. Co. v. Johnson, Okl., 403 P.2d 229; United States Fire Ins. Co. of New York v. Rayburn, 183 Okl. 271, 81 P.2d 313. Its claim for recovery under the alleged parol insurance contract was denied and action on the alleged parol agreement was commenced.

No demurrer to the petition was interposed by either defendant. Both defendants joined issue by answer. Plaintiff filed its reply and the case came on for trial before a jury. The judgment appealed is for defendants, granted on motion, at the close of the opening statement to the jury. We are not in accord with this summary disposition of the lawsuit.

The opening statement generally paralleled the allegations of the petition. Plaintiff, by its counsel, admitted that a policy of insurance had been delivered to it. It also admitted that the policy had not been examined in its behalf prior to the loss sustained. Plaintiff stated to the jury that the policy had been delivered 'not more than thirty days' prior to the loss.

An unconditionally accepted written contract supersedes any related inconsistent parol agreement. Concerning insurance contracts this court has espoused the rule that acceptance of an insurance policy must be unconditional but it need not be by formal act. Reception and retention of the policy without objection beyond a reasonable time may be deemed an acceptance. Nossaman v. Northwestern National Life Insurance Company, Okl., 376 P.2d 622, 625.

If in this lawsuit the plaintiff retained the policy without objection beyond a reasonable time then it cannot sue upon an earlier inconsistent parol agreement. The written contract becomes the entire agreement. If the time of retention...