Sec. Ins. Co. of New Haven v. Mcalister
| Decision Date | 24 July 1923 |
| Docket Number | Case Number: 14176 |
| Citation | 90 Okla. 274,1923 OK 566,217 P. 430 |
| Parties | SECURITY INSURANCE CO. OF NEW HAVEN, CONN., v. McALISTER. |
| Court | Oklahoma Supreme Court |
¶0 1. Insurance -- Automobile Insurance -- Burden of Proof--Value of Car at Time of Loss.
Where suit is brought to recover on an insurance policy covering an automobile, the burden is on the plaintiff to show the value of the car at the time of the loss, and proof of value at the time the policy was issued without other testimony showing how the car had been used and the condition at the time it was stolen as compared with condition at the time it was insured, or other facts from which the value of the car at the time of the loss can be ascertained, is insufficient.
2. Insurance--Forfeiture of Policy--Essentials of Estoppel of Insurer.
In order for the acts and conduct of the insurer to estop it from claiming forfeiture of the policy, it must appear that the acts or conduct of the insurer misled the insured and caused him to alter his situation to his prejudice.
3. Same--Waiver by Insurer -- Failure to Allege--Demurrer to Evidence.
Where the acts of the insurer show an intention to relinquish the right of forfeiture for failure to give proof of loss, such acts will be held to constitute a waiver, and in such cases the facts need not be such as to amount to estoppel; but where the petition of the plaintiff alleges no fact tending to show a waiter, but evidence tending to show waiver is introduced over the objection of defendant, such evidence will not be considered in determining the sufficiency of the evidence on a demurrer.
Error from District Court, Carter County; Thos. W. Champion, Judge.
Action by Roy McAlister against the Security Insurance Company of New Haven, Conn., to collect insurance. Judgment for plaintiff, and defendant brings error. Reversed and remanded, with directions.
Rittenhouse & Rittenhouse, for plaintiff in error.
Sigler & Jackson, for defendant in error.
¶1 This action was brought on an insurance policy by Roy McAlister, defendant in error, against Security Insurance Company, of New Haven, Conn., plaintiff in error. The parties will hereinafter be referred to as plaintiff and defendant, as they appeared in the trial court.
¶2 The defendant filed a demurrer to plaintiff's petition, which was overruled, and this action of the trial court is assigned as error. The petition did not allege that the plaintiff was the owner of the automobile insured at the time the insurance policy was insured or at the time of the loss, neither did it allege the value of the automobile at the time of the loss. The petition in these respects was defective, but it is not necessary for us to determine whether it was error for the trial court to overrule the demurrer, as the cause must be reversed on other grounds and the petition can be amended in the trial court so as to correct the above mentioned defects.
¶3 The defendant filed a demurrer to the evidence of the plaintiff, which was overruled, and defendant now insists that the evidence was insufficient in several particulars. It is first insisted that there was no evidence showing the value of the car at the time it was stolen. In cases of this kind, where the insurance is on personal property subject to rapid change, the burden is on the plaintiff to show the value of the property at the time of the loss, and proof of its value at the time the policy of insurance was issued, unless such proof is accompanied by facts and circumstances from which its value at the time of the loss can be determined, is insufficient. Strawbridge v. Standard Fire Ins. Co. (Mo. App.) 193 Mo. App. 687, 187 S.W. 79; Home Ins. Co. v. Stone River Nat. Bank (Tenn.) 88 Tenn. 369, 12 S.W. 915; City of DeSoto v. American Guaranty Fund Mut. Fire Ins. Co. (Mo. App.) 102 Mo. App. 1, 74 S.W. 1; Germier v. Springfield Fire & Marine Ins. Co. (La.) 109 La. 341, 33 So. 361. The evidence in this case as to the value of the car at the time of the loss is very unsatisfactory, and there is no evidence...
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