Phoenix Ins. Co. v. Ceaphus

• Decision Date: 14 November 1911
• Citation: 119 P. 583,29 Okla. 608,1911 OK 421
• Parties: PH×NIX INS. CO. v. CEAPHUS.
• Court: Oklahoma Supreme Court

119 P. 583

29 Okla. 608, 1911 OK 421

PH×NIX INS. CO. v. CEAPHUS.

Supreme Court of Oklahoma

November 14, 1911

Syllabus by the Court.

Where the fire insurance policy sued on provides, "This entire policy unless otherwise provided by agreement indorsed hereon or added hereto shall be void, *** if the interest of the insured be other than unconditional and sole ownership; or if the subject of insurance be a building on ground not owned by the insured in fee simple," etc., and it was admitted on the trial that the building insured was not on ground so owned at the time the policy was executed and delivered, but on ground owned and patented to the wife of the insured, if parol evidence to establish a waiver of said condition is admissible to prove that the agent of the insurer had notice or knowledge of that fact at that time, the same is insufficient to establish such waiver, where the policy also provides: "No officer, agent or other representative of this company shall have power to waive any provision or condition of this policy except such as by the terms of this policy may be the subject of agreement indorsed hereon or added hereto and as to such provision and conditions no officer, agent or representative shall have such power or be deemed or held to have waived such provisions or conditions unless such waiver, if any, shall be written upon or attached hereto, nor shall any privilege or permission affecting the insurance under this policy exist or be claimed by the insured unless so written or attached."

Error from District Court, Bryan County; Robt. Crockett, Judge.

Action by Ben Ceaphus against the Ph nix Insurance Company. Judgment for plaintiff, and defendant brings error. Reversed and remanded.

Burwell Crockett & Johnson, for plaintiff in error.

Hatchett & Ferguson, for defendant in error.

TURNER C.J.

This is an action brought by Ben Ceaphus, defendant in error hereafter called "plaintiff," against the Ph nix Insurance Company of Brooklyn, N. Y., hereafter called "defendant," in the district court of Bryan county upon a fire insurance policy executed by defendant on February 15, 1907, by which defendant undertook to insure plaintiff's one-story frame building with shingle roof, situated on the S.E. 1/4 of section 8, township 6 S., range 11 E., then in the Indian Territory, in the sum of $750. A copy of the policy is filed as an exhibit to his petition and contains: "In witness whereof this company have executed and attested these presents. This policy shall not be valid until countersigned by the duly authorized agent at Tishomingo, I. T. Chas. A. Shaw, President. Joseph McCord, Sec. Countersigned at Tishomingo, I. T." During the life of the policy, on December 14, 1907, the house was totally destroyed by fire. For answer defendant pleaded a general denial and, as a second defense, that plaintiff was not at the time the policy was issued and delivered, nor at any time prior to the alleged destruction of said building, the owner in fee simple of the real estate on which it was located, and that the insured was not during any of that time the sole and unconditional owner of said land, and for that reason said policy is void because of that part thereof which reads: "This entire policy unless otherwise provided by agreement indorsed hereon and added hereto shall be void if the insured now has or shall hereafter make or procure any other contract of insurance whether valid or not on property covered in whole or in part by this policy; *** or if the interest of the insured be other than unconditional and sole ownership; or if the subject of insurance be a building on ground not owned by the insured in fee simple," etc. For a third defense defendant pleaded failure on the part of the insured to comply with the terms of the policy and that none of the conditions or terms thereof were ever waived by any of its officers or agents. For reply thereto plaintiff, after a general denial, pleaded that defendant was estopped from relying for a forfeiture upon said part of the contract of insurance for the reason that the agent, who executed the policy and accepted payment of the premium which had not been returned or offered, knew all the facts concerning the title of said real estate upon which said building was located and issued said policy with full knowledge thereof. There was trial to a jury, during which a return of the premium was tendered and refused and judgment rendered and entered for plaintiff, and defendant brings the case here.

In maintaining the issues on his part after admitting that the house described in the policy was not located on land owned by him at any time prior to the destruction, plaintiff, after introducing said policy in evidence, to prove the waiver pleaded, was permitted to testify over objection to a conversation between plaintiff and the agent, in effect that he had informed the agent at the time he came to inspect the risk that the land belonged to his wife, and showed him her patent therefor, whereupon the agent replied that such did not matter and copied the description of the land therefrom to set forth in the policy. The admission of this testimony is assigned for error, and such it seems to be. Said policy provides: "No officer, agent or other representative of this company shall have power to waive any provision or condition of this policy except such as by the terms of this policy may be the subject of agreement indorsed hereon or added hereto and as to such provisions and conditions no officer, agent or representative shall have such power or be deemed to have waived such provisions or conditions unless such waiver, if any, shall be written upon or attached hereto, nor shall any privilege or permission affecting the insurance under...