Plaintiff in its petition alleged that it had obtained from defendant insurance company, through the defendant insurance agent, a policy of insurance covering public liability on a particular motor vehicle; that it thereafter sought to enlarge the coverage of the policy to include collision risk. Plaintiff further alleges that in the parol negotiations on the proposed additional coverage plaintiff by an authorized officer agreed to buy and the defendant insurance agent agreed to sell an insurance policy issued by defendant insurance company which would include the collision risk coverage. It was also then allegedly agreed that the policy would be issued bearing an effective date coinciding with the expiration of the existing policy which did not cover collision loss. Plaintiff further alleged issuance of the policy effective at the agreed time but omitting collision coverage. Plaintiff did not seek to reform the policy but seeks to enforce the separate oral contract. Glens Falls Ins. Co. v. Johnson, Okl.,
No demurrer to the petition was interposed by either defendant. Both defendants joined issue by answer. Plaintiff filed its reply and the case came on for trial before a jury. The judgment appealed is for defendants, granted on motion, at the close of the opening statement to the jury. We are not in accord with this summary disposition of the lawsuit.
The opening statement generally paralleled the allegations of the petition. Plaintiff, by its counsel, admitted that a policy of insurance had been delivered to it. It also admitted that the policy had not been examined in its behalf prior to the loss sustained. Plaintiff stated to the jury that the policy had been delivered “not more than thirty days” prior to the loss.
An unconditionally accepted written contract supersedes any related inconsistent parol agreement. Concerning insurance contracts this court has espoused the rule that acceptance of an insurance policy must be unconditional but it need not be by formal act. Reception and retention of the policy without objection beyond a reasonable time may be deemed an acceptance. Nossaman v. Northwestern National Life Insurance Company, Okl.,
If in this lawsuit the plaintiff retained the policy without objection beyond a reasonable time then it cannot sue upon an earlier inconsistent parol agreement. The *560 written contract becomes the entire agreement. If the time of retention without objection was reasonable, then the inconsistent parol agreement, when proved, controlled the rights of the parties. The declaration in the opening statement that not more than thirty days had transpired between delivery of the policy and occurrence of the loss is not ipso facto an unreasonable period. The admission concerns a period the duration of which is from one to thirty days.
Defendants in error rely in their brief upon the decision in National Fire Ins. Co. of Hartford v. McCoy et al.,
From the opening statement we cannot know, and the trial court could not have known, whether the period of plaintiff’s mute retention of the policy was reason-c ble or unreasonable. A definite period of time is not even stated, only that the period was thirty days or less.
Judgment on opening statement by counsel will be granted only when such statement positively affirms or admits facts clearly precluding recovery by plaintiff, or clearly showing no defense by defendants to the cause of action alleged by plaintiff. Williams et al. v. Long Bell Lumber Co.,
The cause is accordingly reversed and remanded with directions to grant plaintiff a new trial.