Twin City Fire Ins. Co. of Minneapolis, Minn. v. First Nat. Bank

• Decision Date: 28 October 1930
• Docket Number: 19562.
• Citation: 292 P. 833,145 Okla. 293,1930 OK 483
• Parties: TWIN CITY FIRE INS. CO. OF MINNEAPOLIS, MINN., et al. v. FIRST NAT. BANK OF MARIETTA, OKL.
• Court: Oklahoma Supreme Court

292 P. 833

145 Okla. 293, 1930 OK 483

TWIN CITY FIRE INS. CO. OF MINNEAPOLIS, MINN., et al. v. FIRST NAT. BANK OF MARIETTA, OKL.

No. 19562.

Supreme Court of Oklahoma

October 28, 1930

Syllabus by the Court.

Petition must be construed in connection with exhibits attached and referred to therein; petition, in action on fire policy held sufficiently to allege value of property destroyed as against general demurrer.

Applying the established rule that a petition must be construed in connection with exhibits attached and referred to therein, it is held, that the petition in this action sufficiently alleged the value of the property destroyed and was good as against a general demurrer.

Application in civil case for change of venue or to disqualify judge for bias or prejudice is addressed to judge's sound discretion, reversible only for clear abuse; trial judge's conduct in questioning witnesses in action on fire policy held to disclose bias and prejudice requiring reversal.

An application filed in a civil case to obtain a change of venue or disqualify the judge on the ground of prejudice or bias is addressed to the sound discretion of the judge and the ruling thereon will not be reversed on appeal, unless there appears to have been a clear abuse of such discretion. It is held, under the above rule and the record here presented, that there is shown such an abuse of discretion as to require the judgment be reversed and cause remanded.

Evidence warranted reformation of fire policy because of misdescription of location, as against demurrer; evidence of insured suing on fire policy held not demurrable as establishing that he did not have sole ownership, and that there was change of interest and title voiding policy.

Record examined, and held, that no error is shown in the action of the trial court in overruling a demurrer to plaintiff's evidence, such demurrer being based and presented upon the theory that the evidence did not show sufficient facts to warrant reformation of one of the policies of insurance sued on and a recovery thereon, and that the demurrer should have been sustained as to both actions on the theory and contention that the evidence established that the assured did not have sole ownership of the property and that there was a change in the interest and title of the subject of insurance, and therefore the policies were void under the terms thereof.

Commissioners' Opinion, Division No. 1.

Appeal from District Court, Love County; Asa E. Walden, Judge.

Separate actions by the First National Bank of Marietta, Okl., against the Twin City Fire Insurance Company of Minneapolis, Minn and the National Fire Insurance Company of Hartford, Conn. The actions were consolidated. Judgment for plaintiff, and defendants appeal.

Reversed and remanded.

Rittenhouse Lee, Webster & Rittenhouse, of Oklahoma City, for plaintiffs in error.

Wilkins & Wilkins and J. H. Hays, all of Marietta, for defendant in error.

LEACH C.

On July 6, 1926, the Twin City Fire Insurance Company, through its local agent at Marietta, Okl., issued to Oscar T. Cochran a fire insurance policy for $3,000, describing the dwelling house of Cochran in the town of Marietta, except it incorrectly stated the exact location of such dwelling, to which policy was attached a mortgage or loss-payable clause in favor of the Local Building & Loan Association of Oklahoma City, the mortgagee in a mortgage theretofore given by Cochran on his premises. On January 10, 1927, the National Fire Insurance Company of Hartford, Conn., acting through the same local agent who wrote the Twin City policy, issued to Cochran a $2,000 policy on the same property and correctly described the location of the building. The house was destroyed by fire on April 17, 1927. On August 1, 1927, Cochran assigned the policies with his rights thereunder to the First National Bank of Marietta, who commenced separate actions to recover on each of said policies. The loan association intervened in the Twin City suit, claiming an interest in the insurance to the amount of its mortgage by virtue of the mortgage clause attached to the policy, and the defendants asked to be subrogated to any recovery had by the loan association. The defendants each filed general demurrers to plaintiff's petition which were overruled and they answered. The two cases were consolidated, and upon trial a verdict and judgment were entered for the plaintiff bank, and the defendants appeal.

The defendants first contend that the court erred in overruling their demurrer to plaintiffs' petition and in not sustaining their objection to the introduction of evidence thereon. Their objection to the petition is that it failed to state the value of the property destroyed.

In the Twin City case the petition alleged "that the loss sustained by reason of said residence being destroyed was about $5,910.00 as shown by the estimate of the cost of said house." In a succeeding paragraph it was alleged that the insured served the defendant with an estimate and proof of loss; "a copy of said estimate is hereto attached and made a part hereof and marked 'Plaintiff's Exhibit B."' In an affidavit attached to the exhibit it is stated "that the cash value of said house was at the time of the fire, $5,910.00, and the above or foregoing estimate is a true and correct estimate and statement of the property destroyed and the value thereof." Similar allegations are contained in the petition on the National policy.

"The allegations of a petition must be construed in connection with the exhibits attached and referred to in the petition." Home Ins. Co. of N.Y. v. Whitchurch, 139 Okl. 1, 281 P. 234.

"Pleadings attacked by demurrer should be liberally construed in favor of the pleader, where material allegations are merely defectively stated and not entirely omitted." Firemen's Fund Ins. Co. v. Box, 123 Okl. 113, 252 P. 433.

We are of the opinion and hold that the allegations of plaintiff's petition, when considered as a whole, sufficiently advised the defendants by express statements therein of the value of the property at the time of its destruction and of the sum the plaintiff would claim its value to be on the trial of the cause. We find no error in the ruling of the court thereon.

The next assignments of error which are presented together are:

"Said court erred in refusing to grant the applications of plaintiffs in error for a change of venue.

"Said court was guilty of misconduct which was prejudicial to the substantial rights of plaintiffs in error and prevented them from having a fair and impartial trial."

The defendants presented an application for a change of venue, which was also considered as a motion to disqualify the trial judge, based on certain remarks made by the judge in an action pending in the district court of Carter county between parties other than those in the present action, some two and one-half years prior to the date of hearing in the instant case. The statement made in the Carter county case is as follows:

"By the Court: Well, I wish there was a way in this State so people could collect insurance.

"By Mr. Webster, of counsel for defendant: We except to the remarks of the Court.

"By the Court: Just a minute and I will give you an earful. I wish the insurance companies in this state when they come in my court would first come and say we don't want to try our cases before you, you will not give us a fair trial, and I would immediately confess it in order to get the case out for the reason I have never seen--this court never observed yet a legal policy in this court, or when the insurance companies were not trying in some way, and they are trying it at all times, to best the insured, buy the juries and everything else."

In response to the application or motion presented in the present case, the court stated in part:

"By the Court: Of course I made that statement, that is the stenographic report of that part of the proceedings in that case. That is a case tried two and a half years ago --two years ago any way. I will confess into this record at the time I made that statement I was nettled, *** and many times, I thought, the attorneys for the insurance companies had filed, what I considered frivolous pleadings for one delay and another, and finally it did get on my nerves. *** I realize the purport of that statement and it should not be made from the bench, but because I made that statement in 1925, don't mean I would make it in 1927. I am a little older and a little wiser and a little sadder maybe. I don't think I am disqualified to give an insurance company a fair trial. I know nothing about these insurance cases. That was entirely a different company. ***

"By Mr. Wilkins, of Counsel for Plaintiff: Does the Court now feel he is prejudiced against the defendant, or biased in favor of the plaintiff.

"By the Court: Of course I will say I am not. I will furthermore say I have no special desire to try anybody's case. I don't think that statement would forever bar this Court from trying an insurance case, however, as we progress along through the trial the record will be made, and if you can show where this Court does not give you a fair and impartial trial the Supreme Court will give you a new trial. The motion for change of venue is overruled, and I will also treat it as a motion to disqualify the Court and give you an exception."

No doubt at the time the motion to disqualify the court was presented the honorable trial judge, against whose honesty and integrity no charge is made, felt that he was without prejudice or bias in the cause and that there were no sufficient grounds to sustain the motion. The previous statement of the judge in the Carter county case standing alone would not, as we...