Springfield Fire & Marine Ins. Co. v. Donahoe

• Decision Date: 19 September 1922
• Docket Number: Case Number: 10631
• Citation: 1922 OK 276,209 P. 442,87 Okla. 78
• Parties: SPRINGFIELD FIRE & MARINE INS. CO. v. DONAHOE et al.
• Court: Oklahoma Supreme Court

1922 OK 276

209 P. 442

87 Okla. 78

SPRINGFIELD FIRE & MARINE INS. CO. v. DONAHOE et al.

Case Number: 10631

Supreme Court of Oklahoma

Decided: September 19, 1922

Syllabus

¶0 1. Insurance -- Fire Policy--Notice and Proof of Loss--Necessity.

Where a fire insurance policy contains the provision that in case of loss by fire, the insured shall give notice of such loss and shall within 60 days make verified proof of loss in writing, and where the policy makes a compliance with such provision a condition precedent to an action, held, the right of action does not mature until such provision has been complied with or waived.

2. Same--Waiver of Proof of Loss.

A provision in an insurance policy requiring proof of loss to be furnished the company within a certain definite time is waived by the company denying liability within said time upon other grounds than failure to furnish proof of loss.

3. Same.

Where a fire insurance company issues its policy of insurance and by mutual mistake of the parties, the name of one of the owners of the property is left out of the policy, and a loss occurs, and within 30 days after the loss the adjuster investigated the cause of the fire, and the amount of the loss, and there was no controversy over the cause of the fire or property loss or the value of the same, and the adjuster offered to pay one-half of the loss, but denied liability as to the other half, for the reason the name of the owner of one-half interest in the property did not appear in the insurance contract, held, that in an action to reform the instrument and for damages for loss, the act of the adjuster in offering to pay one-half of the loss, but denying liability as to the other half for the reason the name of the owner of said one-half of said property did not appear in the policy, amounted to a denial of liability upon other grounds than failure to furnish proof of loss, and having denied liability upon other grounds within 60 days, the provision of the policy requiring proof of loss to be made within 60 days was waived.

4. Same--Action on Policy--Sufficiency of Evidence.

Record examined, and held, the evidence was sufficient to support the verdict of the jury.

Error from District Court, Kay County; J. W. Bird, Judge.

Action by E. L. Donahoe and others against the Springfield Fire & Marine Insurance Company on fire insurance policy. Judgment for plaintiffs, and defendant brings error. Affirmed.

Albert L. McRill and John W. Scothorn, for plaintiff in error.

James Q. Louthan, for defendants in error.

McNEILL, J.

¶1 On August 23, 1915, the Springfield Fire & Marine Insurance Company issued its contract of insurance in the sum of $ 1,500 against loss or damage to certain wheat. The policy was issued in the name of George B. Murray. On October 24, 1915, wheat of the value of $ 835.50 was destroyed by fire. About thirty days thereafter, the general adjuster for the insurance company went to the place of the fire and made an examination and inquiry regarding the loss and offered Murray $ 417, provided Murray would receipt for the same as payment in full of the contract and surrender the policy. This offer was made upon the theory that Murray owned only one-half of the wheat; the other half was owned by Donahoe Brothers. Thereafter suit was instituted by Murray and the Donahoes, as plaintiffs, against the insurance company, asking to reform and modify the policy, it being pleaded that the names of the Donahoes were omitted by inadvertence and mutual mistake of the parties and the agent of the company who wrote the policy, and asking to reform the contract, and then praying for judgment for the value of the wheat destroyed.

¶2 The defendant answered, first, by general denial, and contended that equity had no power to reform a written instrument by substituting any parties or adding new subject-matter. The evidence disclosed that the agent of the company who wrote the policy knew the Donahoes owned one-half interest in the wheat and was so advised by Murray, and that it was the intention of both Murray and of Sharp, the agent of the company who wrote the policy, to insure the interest of both the Donahoes and Murray in the wheat. The case was tried, and a verdict returned in favor of the plaintiffs and against the defendant for the full amount.

¶3 For reversal, the plaintiff in error presents but one question, and that is, that the defendants in error never furnished proof of loss as required by the policy, and for that reason the defendants in error cannot recover, and it was error for the court to overrule the demurrer of plaintiff in error to the evidence, and there is insufficient evidence to support the verdict of the jury. It is settled by the decisions of this court that plaintiff cannot recover on an insurance policy until after proof of loss has been furnished or the same has been waived. Hartford Fire Ins. Co. v. Sullivan, 74 Okla. 241, 179 P. 24; St. Paul F. & M. Ins. Co. v. Mittendorf, 24 Okla. 651, 104 P. 354, 28 L.R.A. (N.S.) 651; Gray v. Reliable Ins. Co., 26 Okla. 592, 110 P. 728; Nance v. Okla. Fire Ins. Co., 31 Okla. 208, ...