Sec. Ins. Co. v. Mcalister

• Decision Date: 22 October 1929
• Docket Number: Case Number: 16927
• Citation: 139 Okla. 176,1929 OK 455,281 P. 766
• Parties: SECURITY INSURANCE CO. v. McALISTER.
• Court: Oklahoma Supreme Court

1929 OK 455

281 P. 766

139 Okla. 176

SECURITY INSURANCE CO. v. McALISTER.

Case Number: 16927

Supreme Court of Oklahoma

Decided: October 22, 1929

Syllabus

¶0 Limitations of Actions--Amended Petition Held not to State New Cause of Action but to Relate Back to Filing of Defective Original Petition and to Prevent Bar of Statute.

Where an original petition sought to recover on an insurance policy protecting the owner of an automobile against the theft thereof, and the said petition was not good as against a general demurrer, but it set out the names of the parties plaintiff and defendant, alleged the contract of insurance as between the plaintiff and defendant, attached a copy of said insurance policy to the petition and made it a part thereof, and alleged the theft of the automobile and the damage by reason thereof, and after the statute of limitations became complete, an amended petition was filed which did not state a new or different cause of action and did not change substantially the plaintiff's claim, it is but the perfection of the imperfect statement of the cause of action originally stated. Held, the amended petition relates back to the filing of the original petition and the action was not barred by the statute of limitations of one year.

2. Appeal and Error--Review--Sufficiency of Evidence in Law Case.

The judgment of the court in a law case will not be disturbed on appeal where there is any competent evidence in the record reasonably tending to support the judgment.

Commissioners' Opinion, Division No. 1.

Error from District Court, Carter County; W. F. Freeman, Judge.

Action by Roy McAlister against the Security Insurance Company of New Haven, Conn. Judgment for plaintiff, and defendant appeals. Affirmed.

Rittenhouse & Rittenhouse and R. U. Livesay, for plaintiff in error.

Sigler & Jackson, for defendant in error.

TEEHEE, C.

¶1 This is the second appeal in this case. In this appeal, as in the first, the parties appear in the reverse of their appearance in the trial court. We will refer to them as they appeared there.

¶2 Plaintiff seeks to recover on an insurance policy issued by defendant. Among other things the policy insured against loss by theft of an automobile. The first case is reported in 90 Okla. 274, 217 P. 430. There the matter adjudicated was the question of the insufficiency of the evidence to sustain the judgment for plaintiff, and arose on defendant's demurrer thereto based on the grounds that there was no evidence to show the value of the automobile at the time of the alleged theft, and that proof of loss was not made to defendant as provided by the policy, and the insufficiency of the evidence to constitute an estoppel or waiver of the forfeiture on account of the failure to make such proof of loss. Upon these contentions the court held:

"(1) 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) 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) 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 facts tending to show a waiver, 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."

¶3 Another point in that appeal was the sufficiency of the petition to state a cause of action for that neither ownership of the automobile by plaintiff at the time of the issuance of the insurance policy, nor its value at the time: of the loss, were alleged. This point was pretermitted, the court observing:

"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 issued, 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."

¶4 Upon remandment of the case for a new trial, plaintiff met the deficiencies of the petition by the filing of an amended petition. Upon unsuccessful intermediate pleadings, defendant answered by denial of all of the allegations except such as were admitted, and further that plaintiff misrepresented certain material facts in respect to the property insured, which voided the policy; that by the terms of the policy, plaintiff was estopped to plead that defendant had waived any of the terms and conditions thereof; and that the cause as alleged and set forth in the amended petition was barred by the statute of limitations, to all of which new matter plaintiff replied by denial thereof.

¶5 The cause proceeded to trial before a jury. Defendant objected to the introduction of any evidence by plaintiff for that, among other grounds, the original petition did not state a cause of action, and the amended petition having been filed more than 12 months after the alleged loss, the action was barred by the statute of limitations. The objection was overruled. At the conclusion of plaintiff's evidence, defendant interposed a demurrer and moved for a directed verdict on the grounds of the insufficiency of the evidence to establish loss by theft of the automobile, and waiver of the filing of a proof of loss, which demurrer and motion were denied. Defendant offered no evidence. Upon motion of plaintiff, the court directed a verdict for plaintiff, and thereon entered judgment of recovery.

¶6 For a reversal of the judgment, defendant submits several propositions, the first being:

"That the original petition filed by the plaintiff wholly failed to state a cause of action, and the amended petition being filed more than 12 months after the alleged loss was barred by the statute of limitations. That the filing of a petition which wholly fails to state a cause of action does not

...