Springfield Fire & Marine Ins. Co. v. Halsey
| Decision Date | 14 May 1912 |
| Citation | 126 P. 237,34 Okla. 383,1912 OK 417 |
| Parties | SPRINGFIELD FIRE & MARINE INS. CO. v. HALSEY. |
| Court | Oklahoma Supreme Court |
Syllabus by the Court.
The provision in a fire insurance policy known as the "iron safe clause," and the provision requiring the insured to keep such books and inventories as will show the amount of merchandise on hand in case of loss, are valid and binding. They are beneficial alike to the assured in accurately determining the loss sustained, and to the insurer in ascertaining its liability.
In an action to recover on an insurance policy, where plaintiff alleges that he has fully complied with all the conditions precedent, and the defendant answers by general denial, and further alleges that plaintiff has violated the provisions of the policy in failing to keep the books and inventories agreed upon, and in failing to keep same in a fireproof safe and plaintiff replies setting up facts which constitute a waiver of such provisions, held, such allegations of waiver constitute a departure from the allegations in the petition that plaintiff has complied with all the conditions precedent, and it is error to overrule a motion to strike such allegations from the reply, and error to admit testimony in support of such allegations.
Commissioners' Opinion, Division No. 2. Error from District Court, Grady County; Frank M. Bailey, Judge.
Action by Walter Halsey against the Springfield Fire & Marine Insurance Company for recovery of $1,200 on a policy. Judgment for plaintiff, and defendant brings error. Reversed and remanded.
Burwell Crockett & Johnson, of Oklahoma City, for plaintiff in error.
F. E Riddle and Harry Hammerly, both of Chickasha, for defendant in error.
This action was begun in the court below for the recovery of $1,200 claimed to be due under an insurance policy issued to plaintiff by defendant company on a certain stock of merchandise and on office furniture and fixtures. The petition alleged the loss by fire, that plaintiff had complied with all the conditions precedent to an action, and that defendant had refused payment of said policy. The defendant answered by general denial of the allegations in the petition, and further pleaded a breach of the terms and conditions of the policy, in that assured had failed to take inventories and keep same as provided by the policy, and had failed to keep such books and records as were provided for in the policy, and had failed to keep such books and inventories in a fireproof safe as were provided for in said policy, and that by reason of plaintiff's failure to keep such books and inventories as had been provided for and agreed upon in said policy, and by reason of his failure to keep such books and inventories in a fireproof safe as had been provided for and agreed upon in said policy, he had violated the express terms of said policy and forfeited his right to recover under same.
Plaintiff replied to the answer, and subsequently filed an amended reply, denying generally the allegations of new matter set out in defendant's answer, and further alleging a condition of facts relied upon as a waiver on the part of defendant of compliance with the provisions complained of in defendant's answer. Defendant moved to strike the allegations of waiver contained in the reply, because such allegations constituted a departure from the allegations in the petition. The court overruled the motion to strike, and the defendant excepted. The cause went to trial. Defendant objected to the introduction of testimony in support of the allegations of waiver, which objection was overruled, and testimony in support of such allegations allowed, to which ruling defendant excepted. The testimony of both parties was submitted, and a verdict for $840.75 returned by the jury in favor of plaintiff. Motion for new trial was filed, overruled, and excepted to by defendant, and judgment rendered thereon. From this judgment and order overruling motion for new trial, defendant company appeals upon ten assignments of error.
The entire case is decided by a determination of the two general propositions, namely: First, whether the "iron safe" clause and "books and inventory" clause are reasonable and binding provisions of the policy; second whether the plea of waiver constituted a departure from the allegations in the petition, and was the objection thereto properly raised? The first question has been definitely settled by this court. In Gish et al. v. Ins. Co. of N. Am., 16 Okl. 59, 87 P. 869, 13 L. R. A. (N. S.) 826, it was held: "The stipulated warranty contained in the policy to keep books and inventories, and to produce them in case of loss, was a reasonable and competent provision to insert or attach to the policy." In Shawnee Fire Ins. Co. v. Thompson & Rowell, 119 P. 989, in opinion by Robertson, C., this court held: ...
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