Rochester German Ins. Co. of Rochester, N.Y. v. Rodenhouse
| Decision Date | 23 October 1912 |
| Citation | 128 P. 508,36 Okla. 378,1912 OK 682 |
| Parties | ROCHESTER GERMAN INS. CO. OF ROCHESTER, N. Y., v. RODENHOUSE. |
| Court | Oklahoma Supreme Court |
Syllabus by the Court.
In an action on an insurance policy, where the petition contains no allegation of compliance with the conditions precedent to an action, and where defendant's demurrer to the sufficiency of the petition is overruled, and defendant answers, alleging that plaintiff has failed to comply with the conditions precedent, and specifically points out the provisions with which plaintiff has failed to comply, and thereupon plaintiff replies, denying those allegations, held, "that by pleading over and undertaking to point out the conditions with which plaintiff had failed to comply, and the manner of their breach, the defendant waived the grounds of its demurrer."
Where the answer, in an action on an insurance policy, contains the allegation that the insured has failed to comply with certain conditions precedent to an action, and points out those conditions, and the plaintiff replies, denying those allegations, he thereby puts those facts in issue; and a further allegation in the reply that defendant has waived those conditions is mere surplusage, and does not constitute a material departure from the allegations in the petition.
Where an insurance policy contains a provision that, in case of loss and failure to agree on the amount of loss, there shall be an appraisement by three appraisers, one of whom to be chosen by the insured, one by the company, and the third by the two thus chosen, and such appraisement is made a condition precedent to an action, held, that it is as much the duty of the insurer as the insured to demand an appraisement; and, in case no appraisement is requested by either party, and the company refuses to pay the loss, the insured will not be precluded from her right of action by reason of failure to demand the appraisal.
Where the contention is made by an insurance company that the policy sued on is void, because the insured was not the owner in fee simple of the lots on which the insured building was situated, and it appears that the agent who issued the policy had authority to issue same, and the policy contained the provision that it should be void, unless countersigned by such agent, and it appears that such agent had notice, prior to and at the time of issuing the policy, that the insured did not own the lots, held, that notice to such agent was notice to the company, and that by issuing the policy and accepting the premium with this knowledge the company is held to have waived the provision that the insured should be the owner of the lots.
Commissioners' Opinion, Division No. 2. Error from District Court, Carter County; S. H. Russell, Judge.
Action by Mrs. L. M. Rodenhouse against the Rochester German Insurance Company of Rochester, N.Y. Judgment for plaintiff and defendant brings error. Affirmed.
This action was begun in February, 1909, by plaintiff below to recover the sum of $1,700, alleged to be due on an insurance policy issued to plaintiff by defendant in January, 1908, on a certain 15-room frame building situated in the town of Waureka; the face of the policy being $1,700. The cause was tried in March, 1910, resulting in a verdict in favor of plaintiff for the face of the policy, $1,700 on which verdict judgment was rendered, and from which judgment the cause is appealed here upon 17 separate assignments of error.
Burwell Crockett & Johnson, of Oklahoma City, for plaintiff in error.
Stuart Cruce & Gilbert, of Oklahoma City, for defendant in error.
Plaintiff in error, however, relies for reversal on the following contentions, namely: That the court erred in overruling the motion for a new trial; that the petition and amended petition fail to state a cause of action; that the insured was not the owner in fee simple of the lots on which the building stood; that the property insured was incumbered by a mortgage, proceedings to foreclose which were pending at the time the policy was taken out; and the further contention that the allegations in plaintiff's reply to defendant's answer constituted a departure from the allegations in the petition. The question of the error of the court in overruling motion for a new trial is disposed of by a determination of the other propositions involved.
This action is a companion case to the American Insurance Co. of Newark, New Jersey, v. Mrs. L. M. Rodenhouse, 128 P 502, recently decided by this court, but not yet officially reported. The two actions, though on separate policies, grew out of the burning of the same building, and are identical in every feature of law and fact, except the question of incumbrance by mortgage, and that the insured did not own a fee-simple title to the lots on which the property was situated, which questions were not involved in the other case. The question of pleading presented here is identical with the question presented and settled in the other case and we follow the rule therein announced. The two petitions are substantially the same. In the other case, as in this case, the petition contained no allegation of compliance with the conditions precedent to an action. In each case, defendant's demurrer to the sufficiency of the petition being overruled, an answer was filed, alleging that plaintiff had failed to comply with the conditions precedent, and distinctly and specifically pointing out the provisions with which plaintiff had failed to comply. Plaintiff replied, denying these allegations, and it was held "that by pleading over and undertaking to...
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