Union Mut. Ins. Co. v. Huntsberry
| Decision Date | 14 March 1916 |
| Docket Number | 6185. |
| Citation | 156 P. 327,57 Okla. 89,1916 OK 328 |
| Parties | UNION MUT. INS. CO. v. HUNTSBERRY. |
| Court | Oklahoma Supreme Court |
Rehearing Denied April 5, 1916.
Syllabus by the Court.
Section 3552, Rev. Laws Okl. 1910 Ann., provides that, whenever a policy holder sustains loss by hail, he shall have his claim for such amount as the company is liable for offset against any note which the company may hold, provided, however, that whenever a loss occurs under any policy, the assured shall give notice within five days after the hail, as a condition precedent to establish any claim or liability. Held, that where this statute was in force at the time the application for insurance was made, and the policy thereunder issued, said statute entered into and became a part of the insurance contract as fully, and to the same extent, as though it was written in the body of the contract; and held, further, that where the insured sustained loss by hail, he cannot maintain an action therefor, unless he has complied with the terms of said statute, in regard to giving the notice provided for therein, or otherwise shows that such notice was waived by the insurance company.
Where a waiver of conditions in an insurance policy is relied upon by the insured, he must show that the company, with knowledge of the facts that occasioned the waiver, dispensed with the observance of the condition, and where the waiver is relied on as the act of an agent, the assured must prove, by a preponderance of the evidence, either that the agent had express authority from the insurer to make the waiver, or that the insurer subsequently, with knowledge of the facts ratified the action of the agent in making such waiver.
Commissioners' Opinion, Division No. 4. Error from County Court, Payne County; W. H. Wilcox, Judge.
Action by W. H. Huntsberry against the Union Mutual Insurance Company, a corporation. Judgment for plaintiff, and defendant brings error. Reversed.
J. M Grubbs, of Stillwater, for plaintiff in error.
J. W Reece, of Cushing, for defendant in error.
This case was commenced by the plaintiff in error, before a justice of the peace of Payne county, to recover judgment on a promissory note for the sum of $11 given by defendant to plaintiff for insurance against loss, and damage to crops by hail during the season of 1911. The defendant answered: (1) Admitting the execution and delivery of the note sued on, and also another note for $18.70, given to plaintiff for the same purpose and consideration; (2) charging that the company was not authorized to carry on business in Oklahoma; (3) the execution and delivery of the note, the hail insurance contract, the hail insurance policy, the loss and damage by hail to amount of $123.70, the notice to the company, its promise to adjust, its failure to adjust or pay. The second paragraph of the answer was stricken by the court as inconsistent. The notes being admitted, the case proceeded to trial on the cross-petition of defendant, alleging loss and damage to his crops covered by the policy for which the notes were given. The case was tried before the justice, and judgment rendered for defendant on his cross-petition for the amount claimed. The plaintiff appealed to the county court where the case was again tried on the same issues, which resulted in verdict and judgment for the defendant, on his cross-petition for $93.63 and interest. The evidence is sufficient to sustain the judgment so far as it relates to the amount of recovery, and therefore we have the single question as to whether the defendant complied with the terms of the contract in giving notice of the loss, or, if notice of loss was given, which did not strictly comply with the contract, was such notice waived by the plaintiff?
Section 3552, Rev. Laws of Okl. 1910 Ann., which we deem sufficient here, provides:
"Whenever a policy holder sustains a loss by hail, he shall have * * * his claim for such amount as the company is liable for set-off against any note of * * * which the company may hold: Provided, however, that whenever a loss occurs under any policy, the insured shall give notice * * * within five days after the hail, as a condition precedent to establish any claim or liability."
The first proposition to be considered under this head is whether notice and waiver were sufficiently pleaded by the defendant to permit him to avail himself of that claim.
The rule of pleading in justice procedure in this state is that:
The part of defendant's answer applicable is:
"That said plaintiff had neglected to deliver said policies of insurance to this defendant until after defendant had sustained said loss, and on the 22d day of May. 1911, this defendant duly notified said plaintiff of his said loss, and said plaintiff promised to inspect and adjust the loss at once, and after this defendant had notified said plaintiff of said loss, this defendant received said two policies of insurance from plaintiff."
Although the word "waive" is not used, we are of the opinion that the language is sufficient to cover an allegation of notice or waiver, especially since no action was taken to require the defendant to make his cross-petition more definite and certain, and it will be so treated here.
Upon the question of notice of the loss, the testimony can hardly be said to be conflicting, and certainly not very satisfactory. The plaintiff, Huntsberry, testifies, in substance: That the loss or damage occurred on May 19, 1914. He was away from home at the time. That he received his policies on the 22d day of May, just after he learned of the hailstorm, that he went to Stillwater and told a man by the name of Patrick of his loss. To establish notice of loss, or waiver thereof, counsel for defendant relies upon the following statement of facts, which we quote from his brief:
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