Springfield Fire & Marine Ins. Co. v. Oliphant

• Decision Date: 09 June 1931
• Docket Number: Case Number: 20043
• Citation: 1931 OK 327,150 Okla. 1,300 P. 711
• Parties: SPRINGFIELD FIRE & MARINE INS. CO. et al. v. OLIPHANT.
• Court: Oklahoma Supreme Court

1931 OK 327

300 P. 711

150 Okla. 1

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

Case Number: 20043

Supreme Court of Oklahoma

Decided: June 9, 1931

Syllabus

¶0 1. Insurance--Fire Policy--Proof of Loss Waived by Denial of Liability.

A provision in an insurance policy which required 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.

2. Same--Liability for Damage from Explosion Caused by Fire.

In an action on a fire insurance policy which exempted insurer from liability where loss occurred by explosion, unless fire ensues, and in such event for the fire damage only, the insurer is liable for the damage caused by explosion as well as damage by fire where the explosion was caused by a preceding hostile fire.

3. Appeal and Error--Sufficiency of Evidence in Law Case Tried to Court.

In a law action tried to the court, this court on appeal will not reverse the judgment because of insufficiency of the evidence where there is any evidence reasonably tending to support the judgment.

Appeal from District Court, Hughes County; Geo. C. Crump, Judge.

Action by A. Oliphant against the Springfield Fire & Marine Insurance Company et al. Judgment for plaintiff, and defendants appeal. Affirmed.

Rittenhouse, Lee, Webster & Rittenhouse, for plaintiffs in error.

Anglin & Stevenson and Forrest M. Darrough, for defendant in error.

HEFNER, J.

¶1 A. Oliphant, as plaintiff, brought three separate actions in the district court of Hughes county against Springfield Fire & Marine Insurance Company, Home Insurance Company, and Sun Insurance Office, to recover on fire insurance policies. The policies covered a small packing plant owned by plaintiff, which he alleged was destroyed by fire.

¶2 The companies defended on the ground that the damage to the property was caused by an explosion and that plaintiff failed to furnish proof of loss. The causes were consolidated and tried to the court and resulted in a judgment in favor of plaintiff.

¶3 Defendants appeal and assign as error that the judgment is contrary to law and not sustained by the evidence. Under this assignment defendants first contend that plaintiff cannot recover because he failed to furnish proof of loss. The evidence is undisputed that no proof of loss was furnished. It is, however, shown that after the property was destroyed plaintiff notified the local agent of defendants of the loss; that an adjuster representing defendants appeared, viewed the property, and denied liability on the ground that the damage was due to an explosion and not to fire. The furnishing of formal proof of loss was by reason thereof waived by defendants. State Mutual Ins. Co. v. Green, 62 Okla. 214, 166 P. 105; Atlas Assurance Co. v. Leonard, 108 Okla. 150, 234 P. 771.

¶4 Defendants further contend that the judgment cannot be sustained for the reason that the evidence establishes that the damage to plaintiff's property was caused by an explosion and not by fire. That under the terms of their policies they cannot be held liable for damages to plaintiff's property caused by an explosion. The policies provide that the companies shall not be held liable for loss caused by explosion of any kind unless fire ensues. It is admitted by plaintiff that there was an explosion and that there was little if any damage caused directly by fire, but it is his contention that the explosion was caused by fire and that the fire which caused the explosion was a hostile fire. If plaintiff's contention is correct, he is entitled to recover. In 14 R. C. L. 1218, the following rule is announced:

"Fire policies usually contain a provision exempting the insurer from liability for a loss by explosion. An exception of this character applies to fire damage following, but caused by, an explosion, according to the better view, though the contrary has sometimes been held. Of course, where the exemption in case of explosion is not unqualified, but is restricted by the exception 'unless fire ensues, and then for the loss or damage by fire only,' it creates liability for loss by fire ensuing upon an explosion, whether the fire is kindled by the explosion itself or by any other cause. Under a provision of the latter character, if the fire precedes the explosion and the explosion is an incident thereto, the fire is the direct or proximate cause of the injury by the explosion, and the insured is entitled to recover for his entire loss; but, if the explosion precedes the fire and is not caused by it, he can, under the express terms of the policy, only recover

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