St. Paul Fire & Marine Ins. Co. v. Mittendorf

• Decision Date: 14 September 1909
• Docket Number: Case Number: 204
• Citation: 1909 OK 233,104 P. 354,24 Okla. 651
• Parties: ST. PAUL FIRE & MARINE INS. CO. v. MITTENDORF et al.
• Court: Oklahoma Supreme Court

1909 OK 233

104 P. 354

24 Okla. 651

ST. PAUL FIRE & MARINE INS. CO. v. MITTENDORF et al.

Case Number: 204

Supreme Court of Oklahoma

Decided: September 14, 1909

Syllabus

¶0 1. INSURANCE--Actions on Policies--Conditions Precedent. In an action on an insurance policy, the plaintiff must allege and prove a compliance with the conditions precedent in the policy, on a waiver thereof.

2. INSURANCE--Hail Policy--Proof of Loss--Sufficiency. In an action on an insurance policy, a substantial compliance with the requirement of proof of loss is sufficient.

3. INSURANCE--Hail Policy--Proof of Loss--Oath of Insured--Necessity. Where, in an action on an insurance policy, requiring "the insured shall within 60 days after the loss make proof thereof under oath," the evidence disclosed that in due time the insured made such proof, but the same was not sworn to by the insured, held, that it was error for the court to charge the same to be sufficient compliance with the requirement of the policy.

4. INSURANCE--Action on Hail Policy--Petition--Conformity with Proof. Where, in an action on an insurance policy the petition alleged certain specific acts as a waiver of proof of loss, and in proof thereof uncontradicted evidence was introduced, without objection, sufficient to prove a waiver thereof upon other grounds, held, that the petition will be considered amended so as to conform to the facts proved, and a waiver so proven fairly in issue.

5. APPEAL AND ERROR--Harmless Error--Instructions. While in an action on an insurance policy it was error for the court to charge the jury that certain proof of loss introduced in evidence was a sufficient compliance with the requirements of the policy, the same is harmless error, where it appears from unconflicting evidence that proof of loss had been waived.

J. B. Houston and H. C. Brooks, for plaintiff in error, citing: 2 Wood on Fire Insurance, sec. 438; Ayers v. Ins. Co., 17 Iowa, 176; A. & E. Enc. Law, vol. 13, p. 332; McGraw v. Ins. Co. (Mich.) 19 N.W. 927; Am. Cereal Co. v. Ins. Co., 148 F. 77; Deming Inv. Co. v. Ins. Co. (Okla.) 83 P. 923; Ins. Co. v. Thorpe, 48 Kan. 239.

L. M. Keys, for defendant in error, citing: Kerr on Insurance, pp. 515, 516; Ins. Co. v. Paul (Ind. T.) 83 S.W. 60; Green v. Ins. Co. (Iowa) 50 N.W. 558; Vassey v. Assur. Co. (S. Dak.) 101 N.W. 1074; Germania Ins. Co. v. Pitcher (Ind.) 64 N.E. 921; Conden v. Hail Ass'n (Iowa) 94 N.W. 447; Emery v. Ins. Co. (Cal.) 26 P. 88.

Error from District Court, Kiowa County; F. E. Gillette, Judge.

Action by F. A. Mittendorf and another against the St. Paul Fire & Marine Insurance Company. Judgment for plaintiffs, and defendant brings error. Affirmed.

J. B. Houston and H. C. Brooks, for plaintiff in error

L. M. Keys, for defendant in error

TURNER, J.

¶1 This is a suit brought by defendants in error, plaintiffs below, in the district court of Kiowa county, to recover for total loss on an insurance policy issued by plaintiff in error, defendant below, insuring them against loss or damage by hail, between May 16, and September 15, 1905, at noon, a certain 25 acres of wheat, 15 acres of oats, and 10 acres of smeltz, growing in said county. The petition substantially states, among other things, that plaintiff had performed all conditions precedent in said policy, and had in due time furnished defendant proof of loss, but not upon blanks furnished by defendant, for the reason that the blanks furnished by defendant were each time first filled out by defendant, showing only a partial loss of $ 100, based upon information furnished by defendants adjuster sent to adjust the loss soon after it occurred, and which plaintiffs refused to sign, and for that reason, and that said adjuster had offered $ 100 in settlement, and had left without asking further information, defendant had waived formal proof of loss under said policy.

¶2 For answer defendants filed a general denial, and, among other things, alleged that the policy provided:

"The insured shall within sixty days after the loss make proof of loss under oath, stating the date and number of his policy, a description of the land upon which the grain was damaged by hail, the date of the loss or damage, the percentage of damage done to grain on each piece of land. A failure by the assured to give the notice or make proof of loss within the time herein specified, shall cause a forfeiture of any claim under this policy." And plaintiffs, if loss had been by them sustained, had failed to make proof thereof as thus required, which said failure worked a forfeiture of said claim.

¶3 After reply in which plaintiff denied each and every allegation contained in the answer, "so far as the same controverts the allegations stated in the petition," there was trial to a jury, which resulted in a verdict and judgment in favor of plaintiffs for $ 391.50, and defendant brings the case here.

¶4 The only error assigned is that the court erred in giving the following instruction:

"You are further instructed, gentlemen of the jury, that if you find from the evidence that within 60 days from the date of the loss complained of the plaintiffs made out and forwarded to the defendant the proof of loss contained in Exhibit D that has been offered in evidence before you, such proof of loss is a sufficient compliance with the requirements of the policy of insurance, which provides that proof of loss shall be made by the plaintiffs to the defendant within 60 days from the date of such loss."

¶5 Said Exhibit D produced by defendant on the trial is as follows:

"Mt. View, Oklahoma, June 19, 1905.

"Van Arsdale & Osborne, Wichita, Oklahoma--Dear Sir: I went this day to the justice of the peace, I. W. Gray, and had him select two other appraisers, which was Mr. C. H. Fisher & Mr. W. H. Garden. We did not make selection of the appraisers. Enclosed you will find a statement from the 3 men above mentioned. Settle this claim on policy No. H. 29908, within 5 days, or we will have to sue on this. Your adjuster, Mr. Payne, acknowledged that we had been damaged, and according to your letter of June 15th could not get me in the fields for settlement. Will say that I was ready to go into the fields at any time, but he was afraid he would miss the train. I would not have done this, but could get no encouragement for settlement, and so I will now have to collect the full amount according to the appraisers. I will also send you notice that was made in fields showing you how they divided and struck a balance. Please return the same.

Yours truly,

"H. R. DAVIS, T. Z. T.

"T. A. MITTENDORF.

"Territory of Oklahoma, County of Oklahoma.

"This is to certify that we the undersigned have this day of June 19, 1905, made a personal inspection of the crops of wheat, oats and smeltz on the quarter of section in township 8th No. of range 15 W. I. M. in Kiowa County, Oklahoma, and find to the best of our knowledge the loss to be as follows, viz.: Wheat 01 per cent. loss, oats 56 per cent. loss, smeltz 80 per cent. loss. In witness whereof we hereunto set our hands this 19th day of June, 1905.

"I. W. GRAY,

"C. H. FISHER.

"W. H. GORDON,

"Subscribed to and sworn before me this 19th day of June, 1905.

"T. E. GIVEN, Notary Public. [Seal.]

"Commission expires August 12, 1907."

¶6 In support of this contention it is urged that as said proof of loss was not made by the "insured" "under oath," it is fatally defective. To so instruct was error. To our minds it is clear that "under oath" meant the oaths of the insured, and not the oaths of others, for the reason, among others, that the policy further provides:

"That any * * * false swearing by the assured relative * * * to the amount or cause of any loss or damage to any insured property, shall be a full satisfaction and discharge of this company from all liability by virtue of this policy and shall be a complete bar to all remedies thereon."

¶7 And that proof of loss under oath of the insured constituted a condition precedent to their right of recovery on the policy, upon a performance of which the insurer had a right to insist. And this, too, we believe although said provision in the policy should be liberally construed in favor of the insured, as to which, in Porter v. Traders' Ins. Co., 164 N.Y. 504, 58 N.E. 641, 52 L. R. A. 424, the court say:

"Finally, it should be noted that the condition alleged to have been violated in this case applied only after the capital fact of loss. The object of the provision was to describe the manner in which an accrued loss was to be adjusted and ascertained. The liability of the defendant having become fixed by the happening of the event upon which the contract was to mature, conditions which prescribe methods and formalities for ascertaining the extent of it, or for adjusting it, are not to be subjected to any narrow or technical construction, but construed liberally in favor of the insured. Solomon v. Continental F. Ins. Co., 160 N.Y. 595, 55 N.E. 279, 46 L. R. A. 682, 73 Am. St. Rep. 707; McNally v. Phoenix Ins. Co., 137 N. Y. 389, 33 N.E. 475; Paltrovitch v. Phoenix Ins. Co., 143 N.Y. 73, 37 N. E. 639, 25 L.R.A. 198; Sergeant v. Liverpool & L. & G. Ins. Co., 155 N. Y. 349, 49 N.E. 935; Matthews v. American Cent. Ins. Co., 154 N.Y. 449, 48 N.E. 751, 39 L. R. A. 433, 61 Am. St. Rep. 627."

¶8 Nor in so holding are we unmindful of the rule that as to proof of loss all that can be required of the insured is a reasonable and substantial compliance with the conditions of the policy. In N.W. Ins. Co. v. Atkins, 66 Ky. 328, 96 Am. Dec. 239, the court said:

"The stipulations referred to, providing for the production of preliminary evidence of loss as a condition precedent to the payment of such loss by the insurer, is not unusual in insurance policies; and it may be regarded as authoritatively settled that a substantial compliance with such a condition must be made by the claimant before a right of action will accrue to him for losses, unless the right to insist on

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