This is an appeal by plaintiff from verdict and judgment for plaintiff in the amount of $2500 in his action against the defendant insurance company to recover for an admitted fire loss. The only substantial issue of fact was whether the insurance coverage under the circumstances was $6000 or $2500. By their verdict, the jury decided this issue in favor of defendant.
Plaintiff, a Beckham County business man, had a farming operation and also operated a trucking business, hauling mostly cotton seed and baled cotton. His insurance needs for both the farming and trucking operations were handled by the Mike Neff Insurance Agency of Sayre, and hаd been for several years. This agency represented, among others, the defendant Mid-Continent Casualty Company, with authority to bind the company. Plaintiff, whose trucking operations were seasonаl, usually did business with the insurance agency by telephone, and usually talked with Mrs. L., a long-time employee in the office. Plaintiff understood and expected that any changes in his insurance coverage whiсh he directed Mrs. L. to make by phone would be effective as of the date of the phone call, and that an additional premium or return premium would be charged or
The narrow issue of fact fоr the jury’s determination was the question of whether, on December 5th, plaintiff called Mrs. L. and directed her to reduce his cargo coverage from $6000 to $2500. On that question, the evidence was in sharp and irreconcilable conflict.
For the defendant, Mrs. L. testified directly and unequivocally that plaintiff called her at the office on December 5th and directed her to delete from the policy оne of his truck tractors which he had sold and to reduce the cargo coverage from $6000 to $2500 because the cotton season was “about over”. She then wrote the company in Tulsa with directions to delete the vehicle and reduce the cargo coverage “effective December 5th”. There was un-contradicted evidence that the company received the letter on December 6th and on December 10th, issued and mailed to the Mike Neff Agency an endorsement effective December 5th, deleting the truck tractor and reducing the cargo coveragе as directed. The endorsement bore the facsimile signatures of the president and secretary of defendant company; see 36 O.S.1971, § 3618. It also recited a return premium of $410, computed as of the effective date. The endorsement was received by the agency on December 11th, countersigned, and forwarded to plaintiff by mail. Plaintiff admittedly received it on December 12th, but did not read it until the mоrning of December 13th. His fire loss occurred that afternoon.
Plaintiff, although admitting that he told Mrs. L. on December 5th to delete the truck tractor, unequivocally denied telling her to reduce the cargo сoverage. He said that when, on the morning of December 13th, he read the endorsement making both changes, he tore it up and threw it into a waste-basket.
It is well settled that a verdict based on conflicting evidence will not be disturbed on appeal if there is any competent evidence to support it; Skogsberg v. First Natl. Bank, Okl.,
In his brief on appeal, plaintiff argues one proposition, stated as a question, as follows: “Can a written insurance contract’s terms be altered by an oral agreement of the parties on an oral request?”
In general argument under this proposition, as we understand it, plaintiff argues at least inferentially (1) that the testimony оf Mrs. L. was improperly admitted in violation of the parol evidence rule, and (2) that, in any event, the reduction in cargo coverage was improperly and ineffectively made in this case.
As to (1) аbove, the well-established general rule is that where the parties to a contract have deliberately put their engagement in writing, “ * * * all parol evidence of prior or contemporaneous conversations or declarations tending to substitute a new and different contract for the one evidenced by the writing is incompetent” (emphasis added). 30 Am.Jur.2d Evidence, § 1016. To the same effect, see 32A C.J.S. Evidence § 901.
It is equally well-establishеd, however, that the rule renders incompetent only evidence of prior or contemporaneous oral declarations, and does not apply to evidence of subsequent oral agrеements; 30 Am.Jur.2d Evidence, Sec. 1063; 32A C.J.S. Evidence § 1004. In Minnehoma Oil Co. v. Koons,
“The rule which excludes parol testimony to contradict or vary the terms of a written instrument has no application where the object of such testimony is to show a new, subsequent agreement involving the same subject matter.”
It is suggested that the rule as stated in Minnehoma is applicable only where there
We hold that the testimony of Mrs. L. about plaintiff’s instructions to reduce cargo insurance coverage to $2500 was properly admitted.
In the general discussion of the evidence in his brief, plaintiff takes the position that the endorsement reducing cargo insurance coverage was “not signed by anyone” ; that the signatures of the president and secretary of thе defendant company were “just printed on it”; and that the endorsement was not countersigned at the Mike Neff Insurance Agency. We do not agree. Plaintiff has obviously overlooked
The authorities cited in plaintiff’s brief are not in point. Most of them are cited or discussed in annotations at
“Changes-Notice to any agent * * * shall not effect a waiver or a change in any part of this policy * * *; nor shall the terms of this policy be waived or changed, except by endorsement issued to form a part of this policy, signed by the secretary.” (Emphasis added).
As we have seen, the endorsement in this case bore the facsimile signature of the secretary, as authorized by
Nor do we find a violation of 15 O.S.1971, Sec. 137, which provides that a contract in writing may be altered by a contract in writing, or by an executed oral argument, and not otherwise. The facts as found by the jury uрon conflicting but competent evidence were that plaintiff initiated the change in cargo insurance coverage in his phone call to Mrs. L. on December 5th. When defendant compаny there' after issued the endorsement which plaintiff admittedly received before his fire loss, reducing the amount of the cargo insurance coverage as directed by plaintiff, the change was сomplete and executed (effective as of December 5th). For other examples of executed oral agreements, see
It is also suggested that because the endorsement bore the typewritten word “Accepted”, with a place for plaintiff’s signature, the parties treated the change as requiring a written agreement. However, in view of the finding of the jury, which is binding upon this Court, that рlaintiff initiated the change orally in the telephone conversation, and in view of the substantially uncontradicted testimony as to plaintiff’s normal method of doing business summarized in the second paragraph of this opinion, we are unable to agree. There was also uncontradicted testimony that defendant company desired plaintiff’s signature merely as an acknowledgement of recеipt of the endorsement. Since plaintiff himself initiated the change, the company’s action in executing and delivering the endorsement constituted its “acceptance” of his “offer”, and did not itself require an acceptance.
The judgment of the Court of Appeals is vacated and the judgment of the trial court is affirmed.