Scott v. Oklahoma Farm Bureau Mut. Ins. Co.

• Decision Date: 14 January 1964
• Docket Number: No. 40327,40327
• Citation: 387 P.2d 487
• Parties: Loran SCOTT, Plaintiff in Error, v. OKLAHOMA FARM BUREAU MUTUAL INSURANCE COMPANY, Inc., a corporation, Defendant in Error.
• Court: Oklahoma Supreme Court

Page 487

387 P.2d 487

1964 OK 6

Loran SCOTT, Plaintiff in Error, v. OKLAHOMA FARM BUREAU MUTUAL INSURANCE COMPANY, Inc., a corporation, Defendant in Error.

No. 40327.

Supreme Court of Oklahoma.

Jan. 14, 1964.

Syllabus by the Court

1. While slight evidence is sufficient to show waiver of policy provision regarding time of making proof of loss, the acts constituting such waiver should be such as are reasonably calculated to make insured believe that compliance therewith was not desired, and that it would be of no effect, if requirements were observed by him.

2. A demurrer to the evidence admits every fact which the evidence, in the slightest degree, tends to prove, and all inferences and conclusions which can be reasonably and logically drawn therefrom; and if there is a conflict in the evidence, that which is unfavorable to the party against whom the demurrer is directed is to be considered withdrawn.

3. Where, in a suit on a hail insurance policy, evidence tending to establish waiver of the requirement of proof of loss is introduced without objection, the pleadings will be considered as amended to conform to the proof and to present the issue of waiver.

4. Where a policy of insurance against hail damage provides that written notice of loss shall be given the insurer within 120 hours after the damage and the insurer furnishes postal cards addressed to it for giving such notice, with instructions thereon to fill in certain information and mail the same, the performance of these acts by the insured is compliance with such notice requirements of the policy.

5. Where a plaintiff in an action on an intangible that would ordinarily be subject to taxation under the intangible tax law, 68 O.S.1961, § 1515, fails to allege and prove compliance with the law or facts showing that the intangible sued on is not liable for taxation under said law, it is proper for the trial court to dismiss the action without prejudice.

Appeal from the District Court of Kay County; C. L. Armstrong, Judge.

Appeal by Loran Scott (plaintiff below) from judgment sustaining a demurrer to his evidence in action on hail insurance policy. Cross appeal by Oklahoma Farm Bureau Mutual Insurance Company, Inc. (defendant below) from order denying its motion for judgment on premium note of plaintiff because of failure to allege and prove payment of Intangible Tax. Reversed and remanded for new trial.

I. D. Ross and David Ross, of Ross & Ross, Newkirk, for plaintiff in error.

Melvin F. Pierce, Oklahoma City, Pierce, Mock, Duncan, Couch & Hendrickson, Oklahoma City, of counsel, for defendant in error.

DAVISON, Justice.

The parties occupy the same relative positions here as they did in the trial court and will be referred to by name or as plaintiff and defendant. Loran Scott brought this action against Oklahoma Farm Bureau Mutual Insurance Company, Inc., to recover on an insurance policy issued by defendant to insure plaintiff against loss by reason of hail damage to plaintiff's wheat crop. Defendant's answer included allegations of counterclaim or setoff for the amount of the note given by plaintiff for the premium for the policy.

The cause came on for trial to a jury. At the close of plaintiff's evidence the trial court sustained defendant's demurrer thereto on the ground that the evidence was insufficient to show that proof of loss had been furnished by plaintiff, as required by the policy, or to show a waiver by defendant of such proof of loss. The trial court rendered a further judgment denying defendant's motion for a directed verdict in its favor for the amount due on the note on the ground that there was no allegation or proof that the intangible tax had been paid thereon. Both parties have perfected their appeals to this court.

We will first determine the matter of the insufficiency of the evidence to show grounds for recovery against the defendant. The policy was issued April 23, 1960, and provided plaintiff should give written notice of any loss within 120 hours after the occurrence of such claimed loss, and within 60 days after the loss should render a signed and sworn proof of loss, and that the amount of loss would be payable 60 days after satisfactory proof of loss had been received. The testimony was that defendant furnished two printed postal cards to plaintiff at the time of the issuance of the policy. One side of the card set forth the name and address of the defendant and instructions that 'this notice of loss' must be filled in and signed and mailed to defendant within 120 hours after the loss occurs; that should hail occur at harvest time, then proceed with harvest, but leave portions unharvested for the adjuster to determine the loss; and stated that defendant would do its best to have an adjuster see the crop from 5 to 10 days after the notice was mailed. The other side of the card was printed with blanks to be filled in to show the date and hour of the hail loss and the location of the crop and residence of plaintiff and the instruction 'COMPLETE THIS SIDE AND MAIL TO HOME OFFICE.' Plaintiff's evidence was that there was hail damage the latter part of May and the first part of June; that on each occasion, and within 120 hours after the damage, a card was filled out and signed and mailed to defendant, but no adjuster ever came; that on each occasion plaintiff was told by the local agent of defendant that an adjuster would come and that a few days after the last damage plaintiff called the home office of defendant in Oklahoma City and informed them the cards had been mailed and harvest time was near and was told an adjuster would call and not to worry, and to go ahead with the harvest and leave some unharvested spots. Plaintiff then harvested the wheat and left some spots for inspection. About the middle of October, after plaintiff received a letter demanding payment of the premium note, plaintiff stated he both called and went to the home office of the defendant and was informed an adjuster would contact him. Plaintiff testified that at no time was he requested to make a formal proof of loss. By letter of October 31, 1960, the defendant informed plaintiff that, since no official notification of hail loss had been received, no consideration could be given the matter. No sworn proof of time or extent of loss was ever submitted to defendant. The action was filed April 26, 1961.

The question for determination is whether the trial court erred in holding, as a matter of law, that the evidence and all reasonable inferences to be drawn therefrom did not constitute a waiver of the requirement of a sworn proof of loss. In Hartford Fire Ins. Co. v. Smith, 141 Okl. 90, 284 P. 624, we stated:

'While slight evidence is sufficient to show waiver of policy provision regarding time of making proof of loss, the acts constituting such waiver should...