128 P. 508 | Okla. | 1912
Plaintiff in error, however, relies for reversal on the following contentions, namely: That the court erred in overruling the motion for a new trial; that the petition and amended petition fail to state a cause of action; that the insured was not the owner in fee simple of the lots on which the building stood; that the property insured was incumbered by a mortgage, proceedings to foreclose which were pending at the time the policy was taken out; and the further contention that the allegations in plaintiff's reply to defendant's answer constituted *380 a departure from the allegations in the petition. The question of the error of the court in overruling motion for a new trial is disposed of by a determination of the other propositions involved.
This action is a companion case to the American Insurance Co.of Newark, New Jersey, v. Rodenhouse, ante,
Likewise the reply in each case contained the same allegations as to waiver of the provisions of the policy which the answer alleged had not been complied with, and the question that such allegations constituted a departure is raised in each case. In the other case it was held:
"Where, in an action on an insurance policy, the answer alleged that the insured had fraudulently misrepresented the value of the property destroyed in her proof of loss, this allegation was sufficiently put in issue by a general denial; and a further allegation in the reply that after the loss defendant offered to pay the policy in full if plaintiff would surrender another policy which she held in a different company, and that it did not return to her the proof of loss she had made, or ask for any additional *381 proof, or claim that the proof furnished was false and fraudulent, and that it had thereby waived all the conditions of the policy, and was estopped to rely upon them, or any part of them, was mere surplusage, and did not constitute a material departure from the issues as raised by the petition and answer."
Also each policy provides, in case of loss, for an appraisement to be made by three appraisers, one of whom to be chosen by the insured, one by the company, and the third to be chosen by the two, and such appraisement is made a condition precedent to an action. In each case the contention, based upon the same state of circumstances, is made that, the appraisement not having been made, the plaintiff is precluded of her right of recovery by reason thereof. On this question the court, speaking through Rosser, C., in the other case, held:
"The provision for appraisers is that the insured and the company have each selected an appraiser, and that they shall select an umpire. Now, what is there in the provisions of the policy which puts the burden of demanding the appraisement upon the insured? For whose benefit was the provision in reference to appraisement inserted in the policy? Undoubtedly it was written into the policy for the benefit of the company. In order to secure an appraisement, it was necessary for the company to appoint an appraiser. The insured could not have an appraisement, unless the company acted with her in the matter of appointing an appraiser. What reason is there for saying that when the loss occurred it was not as much the duty of the company as of the insured to request the action necessary to settle the loss? The company had insured the property and collected the premium. It should have been ready on its part to take whatever steps were necessary to settle the loss."
And, after quoting at length from the authorities which hold that it is as much the duty of the company as the insured to demand an appraisal, and that in case of disagreement as to loss, where neither demands an appraisal, the insured has a right of action, concludes:
"In view of defendant's admission in this case that it did not demand an appraisal of the property, the court did not err in holding that an appraisal was not required."
The facts in that case are identical with the facts in the case at bar, and the rule in that case is followed here. *382
The contention that the policy was void, because the property was incumbered by a mortgage, is disposed of by the fact that the policy expressly provided for the protection of the mortgagee to the amount of the mortgage, $650, and the company is held to have expressly waived that provision. But the fact of plaintiff's having no title to the lots presents a more serious question — one which in the absence of notice of such fact to the company, would render the policy void. There was some conflict in the testimony as to whether the company had such notice, but this fact was determined in the affirmative by the jury. However, the record discloses that the notice, claimed to have been given, was given to the agent of the company; that is, plaintiff testified that previous to and at the time of making the contract she informed Mr. Hunter, the company's agent, that she had no title to the lots. Now, the question whether notice to Hunter was notice to the company depends upon two propositions: First, whether he was a mere local agent authorized only to take applications for insurance, or whether he was an agent who had authority to issue policies himself. That is, whether he was such an agent as that it required his countersignature to make the policy valid. Second, if he was such an agent as had authority to issue policies, then the question is whether such notice was given him before or after the issuance of the policy.
The plaintiff testified that prior to the making of the contract she informed the agent, Mr. Hunter, that she had no title to the land, and testified further that Hunter replied that this made no difference. This testimony was not denied. Hence the jury was justified in finding that notice was given before the policy was issued. The question whether the agent, Hunter, had authority to issue policies, and whether notice to him was notice to the company, is settled by the policy itself, which provides: "Not valid unless countersigned by the duly authorized agent at Waurika, Okla."
The company conceded that Mr. Hunter, who countersigned the policy, was the duly authorized agent of the company. Under this state of facts the question of notice is disposed of by the *383
rule announced by this court in Western National Insurance Co.v. Marsh,
"We feel that this rule, established by such an overwhelming weight of authority, should be followed by us, and we are the more ready to do so because it accords with our sense of justice. Indeed, this result is foreshadowed by the decisions of this court in Arkansas Ins. Co. v. Cox,
This opinion was followed in Insurance Co. of N. Am. v.Little,
In view of the above decisions and the splendid list of *384 authorities therein cited, and in view of the facts in the case at bar, we adhere to the rule therein stated.
The judgment of the court below is affirmed.
By the Court: It is so ordered.