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versed, and the cause remanded, with directions to sustain the motion.
IRWIN, J., who presided in the court below, not sitting. All the other Justices (oncurring.
an agent, it must be shown 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.
[Ed. Note.---For cases in point, see Cent. Dig. vol. 28, Insurance, $8 918, 1020, 1027.] 8. SAME-PROOF OF WAIVER.
A waiver may be established by proof of such facts and circumstances as would reasonably result in that conclusion.
[Ed. Note.-For cases in point, see Cent. Dig. vol. 28, Insurance, $$ 1026, 1028.] 9. SAME-EVIDENCE.
Under the facts as disclosed by the record in this case, held, that the question of waiver was a question of fact, to be determined by the jury under proper instructions, and that the court erred in sustaining the demurrer to the evidence and in taking the case from the jury. 10. SAME.
The case of Liverpool & London & Globe Ins. Co. v. T. M. Richardson Lumber Co. distinguished. 69 Pac. 935, 11 Okl. 585.
(Syllabus by the Court.)
Error from District Court, Caddo County ; before Justice B. F. Burwell.
Action by Moses N. Gish and others against the Insurance Company of North America. Judgment for defendant, and plaintiffs bring error. Reversed and remanded.
A. J. Morris, for plaintiffs in error. Glitsch & Glitsch and H. H. Howard, for defendant in error.
(16 Okl. 59) GISH et al. v. INSURANCE CO. OF NORTII
AMERICA.* (Supreme Court of Oklahoma. Sept. 7, 1905.) 1. INSURANCE-IRON-SAFE CLAUSE-VALIDITY.
A stipulation in a fire insurance policy that the insured shall make and keep inventoring and books, and keep them in a fireproof safe in some place not exposed to fire which would ignite or destroy the building in which the property insured is situated, and in cases of loss to produce sucb books and inventories for the inspection of the insurer, and in the event of failure on the part of the insured to produce such books and inventories for the inspection of the insurer that the entire policy shall be null and void, is a reasonable and competent provision to insert in and attach to the policy.
(Ed. Yote.-For cases in point, see Ceni. Dig. vol. 28, Insurance, & 853.] 2. EVIDENCE-PAROL EVIDENCE.
That a contract in writing, if its terms are free from doubt and ambiguity, must be permitted to speak for itself, and cannot by the courts, at the instance of one of the parties, be altered or contradicted by parol evidence, unless in case of fraud or mutual mistake of facts; and this principle is applicable to contracts of insurance.
[Ed. Note.For cases in point, see Cent. Dig. vol. 20, Evidence, $$ 1818-1821.] 3. INSURANCE CONDITIONS OF POLICY WAIVER.
It is reasonable and competent for insurance companies to provide in their policies that no officer, agent, or other representative of the company shall have the power to waive such stipulation of warranty, unless indorsed thereon or added thereto.
[Ed. Note.-For cases in point, see Cent. Dig. vol. 28, Insurance, $$ 952, 963.] 4. SAJE-WAIVER OF CONDITIONS.
Where an insurance policy contains such a stipulation of warranty, and provides that no officer, agent, or other representative of the company shall have the power to waive any condition or provision of the policy, unless such waiver shall be written upon or attached thereto, such limited grant of authority is the measure of their power.
[Ed. Note.--For cases in point, see Cent. Dig. vol. 28. Insurance, $ 952.] 5. SAME.
The rules announced in the case of Lirerpool & London & Globe Ins. Co. v. T. M. Richardson Lumber Co., reported in 69 Pac. 935, 11 Okl. 585, approved and followed. 6. SAME-WAIVER OF CONDITIONS.
It is always open for the insured to show & waiver of the conditions contained in a policy of fire insurance, or a course of ronduct on the part of the insurer which gave him just and reasonable ground to infer that a forfeiture would not be exacted.
[Ed. Yote.-For cases in point, see Cent. Dig. vol. 28, Insurance, $S 1026, 1027.] 7. SAME.
Where a waiver of the conditions in a fire insurance policy is relied upon by the insured, he must show that the insurer, with knowledge of the facts that occasioned the forfeiture, dispensed with the observance of the condition that, where the waiver relied on is the act of
*Rehearing denied January 12, 1907.
BEAUCHAMP, J. On the 9th day of October, 1903, the plaintiffs in error commenced this action against the defendant in error in the probate court of Caddo county to recover the sum of $500, as due under the terms of a policy of fire insurance that had been issued by the defendant in error to the plaintiffs in error on the 1st day of July, 1903, on a stock of furniture situated in Anadarko, and which was, on the 29th day of July, 1903, destroyed by fire. After issues joined, trial was had in the probate court, resulting in a judgment for the plaintiffs in the sum of $500, the amount claimed. The cause was appealed to the district court of Caddo coun. ty, and on the 24th day of May, 1904, a jury was impaneled, and after the plaintiffs had introduced their evidence and rested, the defendant demurred to the evidence. The demurrer was by the court sustained, and judgment rendered against the plaintiffs for costs. A motion for a new trial was heard and overruled, and exceptions saved. The plaintiffs bring the case here upon petition in error and case made for review.
Attached to the policy is a slip containing a warranty that the plaintiffs should make an itemized inventory of the stock insured at least once in each calendar year, and that, unless such inventory had been taken within 12 months prior to the date of the policy, the same should be taken in de tail within 30 days after its date, or that the policy should be void ; and that the insured should keep a set of books which
should clearly and plainly present a com- and that the court erred in excluding the plete record of the business transacted, in- evidence offered. cluding all purchases, sales, and shipments The policy contains the further proviof said stock, both for cash and credit, from sion: “And no officer, agent, or other reprethe date of the inventory provided for and sentative of this company shall have power during the continuance of the policy, and to waive any provision or condition of this that the plaintiffs should keep such books policy, except such as by the terms of this and inventory, and also the last preceding policy may be the subject of this agreement inventory, securely locked in a fireproof safe indorsed hereon or added hereto." The clear at night, in some place not exposed to fire purpose of this evidence was to show that which would ignite or destroy the building the contract expressed in the policy was not in which the stock insured is situated, and in reality the contract as made, and to rein case of loss that they should produce such ceive such evidence for the purpose of raising books and invoices for the inspection of the an estoppel would be a mere evasion of the defendant. In the event of failure on the rule excluding parol evidence when offered part of the insured to keep and produce to alter or change the terms of a written such books and invoices for the inspection contract. The defendant cannot be estopof defendant, the entire policy should be- ped from making the defense that the concome null and void, and such failure should tract as set forth in the policy sued on is constitute a perpetual bar to any recovery its contract, or that the plaintiffs have viothereon. At the time that the policy was lated it in this particular, which are made issued, the firm of Perry & Farmer were the conditions to their right under it, on the local agents for the defendant at Anadarko, ground of negotiations and transactions ocwith power to receive applications for in- curring prior to and at the time the contract surance against loss or damage by fire, and was entered into, unless the plaintiffs are fix rates of premiums, to receive moneys, permitted to show by parol testimony that and to countersign and to issue policies sign- the contract, as put in writing does not ed by the president and attested by the sec- truly set forth and express the intentions of retary of defendant, and to attend to such the parties, as an estoppel could not arise exother duties as pertain to the business of cept upon proof of a contract different from the agency, subject to the rules and regula- that contained in the policy. By the express tions of the company, and to such instruc- terms of the policy, the authority of Perry & tions as may from time to time be given by Farmer, so far as to waive any provision defendant's officers and managers. In the or condition of the policy, was limited, and petition plaintiffs allege that they accepted they had no authority to waive any such prothe policy with the express understanding visions or conditions so as to bind the dethat the safe clause should not be binding fendant except in writing, and the plainupon them. The books and inventories were tiffs were bound to know what their connot kept in a fireproof safe by plaintiffs, tract contained, and to see that its terms as required by the terms of the policy, but were complied with. It is not ambiguous were kept in a desk in the building with the in its terms, but plain and explicit, so that stock of furniture, and were destroyed with parol evidence could not be resorted to for the stock of furniture. The plaintiffs at the the purpose of explaining its meaning, and trial offered to prove by Mr. Gish, while on under such circumstances the parties have the stand as a witness, that at the time the made it. The stipulated warranty contained policy was issued defendant's agents, Perry in the policy to keep books and inventories, & Farmer, visited and inspected the goods and to produce them in case of loss, was a insured, and at the time they issued the pol- reasonable and competent provision to inicy knew that the plaintiffs had no fireproof sert or attach to the policy, and it was reasafe, and knew that they would not keep sonable and competent for the defendant, to the books and papers in a fireproof safe, provide in its policy that no officer, agent, and that plaintiffs were informed by Perry or other representative of the company & Farmer that the fireproof safe clause should have power to waive such warranty, woulu not be insisted upon by the defendant; unless indorsed thereon or attached thereto, and with this understanding the policy was and Perry & Farmer had no authority or accepted by the plaintiffs, which evidence power to waive such condition or provision was by the court, over the objection and ex- of the policy, except such waiver be written ception of the defendant, excluded.
and attached to the policy. The rule here It is insisted by plaintiffs that, as the expressed is in conformity with the rule laid policy was issued, delivered, and the pre- down in the well-considered case of Livermium accepted with knowledge by defend- pool & L. & G. Ins. Co. v. Richardson Lumber ant's agents, facts existed which would con- Co., in the able and carefully prepared stitute a breach of the conditions of the opinion by Associate Justice Hainer, 11 Okl. policy, and that they assured the plaintiffs 585, 69 Pac. 935, and with which we are that such a breach would not be insisted still satisfied. The trial court committed upon; that the defendant cannot, since the no error in excluding this testimony. fire occured, take advantage of such breach, The answer of the defendant sets forth that, shortly after the discovery of the fire, same relying upon the representations and one of its adjusters went upon the ground statements of the adjuster; that the instrufor the purpose of inspecting and ascertain- inent was presented to him by the adjuster ing the cause of the fire and the extent of the after dark, and when it would have been loss sustained by plaintiffs, and in the course
difficult for him to read the same, and, relyof that investigation first ascertained that ing on the representations and statements the warranty to keep the books and inven- made by the adjuster, he signed the same. tories in a fireproof safe, and to produce This evidence, upon the objection of the dethem in case of loss, had been broken and fendant, was also excluded by the court over violated by the plaintiffs, and that the books the objection and exception of the plaintiffs, had been destroyed with the stock of fur- and of which ruling of the court plaintiffs in niture; and Gish testified that the adjuster error complain. arrived on the 4th day of August, and that It is not questioned but that the loss was he was informed of these facts immediately an honest one. The evidence shows that it upon his arrival, and that he (Gish) paid originated in a building different from that in the premium to Perry & Farmer on that which plaintiffs' goods were situated, and day, and the register or record kept by l'er- the value of the furniture destroyed and corry & Farmer shows that the premium was ered by the policy was about $1,200. The paid by plaintiffs August 4th, and Mr. Perry defendant admitted upon the trial that, if testified that he was informed, a day or two the plaintiffs were entitled to recover at all, after the fire occurred, that plaintiffs' books they were entitled to recover the full face were burned in the fire; that notice of loss of the policy; so that the question now is, was sent to the defendant by Perry & Farm- did the defendant, by its conduct and the er; that the premium for the policy was re- conduct of its agents, waive the right to inmitted to the defendant on the 10th day of sist upon a forfeiture of the contract of inSeptember, 1903, and that the money was surance by reason of the plaintiffs having never returned, and the company never gave failed to comply with the terms of the warthem any instructions to return, or offer to ranty? return, the money; and it was admitted by In the case of Insurance Co. v. Smith counsel for defendant that the money was (Miss.) 30 South. 362, being a case in which received by defendant some time after the the facts are very similar to this case, the 10th of September, and there is no claim Supreme Court of Mississippi held: “Where that defendant has returned the money, or the policy issued by an insurance company offered to return it.
on certain fixtures provided that it should On the 4th day of August, on the arrival be void if the insured's interest in the propof defendant's adjuster at Anadarko, Gisherty should be otherwise than unconditional, had a conversation with him, in which he in- the acceptance and holding of the premium formed him of the facts with reference to on the policy by the company's local agents, the books and inventories, and on the trial of which the company's special agent and plaintiffs sought to prove by Gish that the adjuster had knowledge, a week after the adjuster, with full knowledge that the books property, which was mortgaged, had burned, and inventories had not been kept in a fire- are a waiver of the condition.” proof safe, and that they were destroyed with We quote from the syllabus in the case of the furniture, required plaintiffs, at con- Johnson v. Massachusetts Ben. Ass'n (Kan. siderable trouble and expense, to furnish du- App.) 59 Pac. 669: “Any untrue statement in plicate invoices of all goods purchased since an application for insurance, when made a the 1st of February, 1903, until the fire oc- part of the policy, and by the insured warrantcurred, and that the adjuster made no ob- ed to be true, avoids the policy of insurance, jection that plaintiffs' books and invoices regardless of the question of its materiality; were destroyed by fire, and made no claim yet the insurance company may by its conof a forfeiture. The defendant objected tu duct waive its right to insist upon such forany evidence to show a waiver by reason of feiture. The acceptance and retention of any acts of the adjuster on August 4th, the money in payment of premiums after the day he arrived at Anadarko, for the reason insurance company has knowledge of all the that the witness admitted he had signed an facts constitute such waiver." instrument purported to be a nonwaiver In the case of Phænix Ins. Co. v. Boyer agreement, which objection was by the court | (Ind. App.) 27 N. E. 628, it is said: “An insustained, and exceptions saved by plaintiffs. surance company accepted payment of the Whereupon the plaintiffs offered to show by premium due after notice that the conditions the witness that the paper called the non- of the policy had been broken by reason of waiver agreement, and which is set up in the building becoming vacant. Afterwards defendant's answer, was signed by the wit- the insured requested the company to cancel ness Gish upon the representations and state- the policy, and return the unearned premium, ments of the adjuster that said instrument but the company refused to do so. Held, was nothing more than a privilege granted that it had waived the forfeiture, and was by the plaintiffs to the defendant to investi- liable for a loss afterwards occurring.” gate the loss, and that he (Gish) signed the In the case of Bloom V. State Ins. Co. (Iowa) 62 N. W. 810, it is said: “The viola- by causing the assured expense and truble, tion of a condition in a fire policy that it shall the forfeiture is waived." Also, the same be voia if any suit be commenced for the en- court in the case of Dick et al. v. Eq. Fire & forcement of any incumbrance on the insured Marine Ins. Co. (Wis.) 65 N. W. 742, said: property without the written consent of the "Where an insurance company has knowlsecretary of the company is waived where edge of facts which show that a condition of the company, with full knowledge of such the policy has been broken, the act of its adviolation, enforces the payment of a prem- juster, sent to ascertain the amount of the ium note by judicial procedure."
loss, in requiring the assured, at some In the case of McKinney v. German Mut. trouble and cost, to supplement his proofs of Fire Ins. Co. (Wis.) 62 N. W. 413, 46 Am. St. loss by furnishing a 'carpenter's estimate' of Rep. 861, it is said: "An insurance company, the damage, estops the company from declarwhich, after notice that the construction of ing such breach to be a forfeiture of the an insured building violates a condition in policy." its policy, receives premiums on the policy, In the case of Roberts, Willis & Talor Co. waives the conditions."
et al. v. Sun Mut. Ins. Co. (Tex. Civ. App.) 35 In the case of German Ins. Co. v. Shader S. W.955, it is said: "An insurance agent (Neb.) 93 N. W. 972, 60 L. R. A. 918, it is cannot waive the requirements of the 'ironsaid: "Receiving the premium after destruc- safe clause when that authority is expressly tion of all the insured property, so that noth- withheld from him by the terms of the poliing reinains to which insurance might at- cy. (2) Where an adjuster, after learning of tach waires a provision that the insurer the destruction of the insured's itemized inshall not be liable for a loss occurring before ventory, lealger, and scratchbook, refused to the payment of the premium. Where proceed with the investigation of the loss unagent who has general power to receive and til insured agreed that futher examination collect premiums accepts a premium after into the loss should be taken as any waiver loss, and the insurer desires to repudiate of any defense the companies may have by such act, it should return or tender the mon- reason of the breach of warranty as coney to the insured. Vere return to the agent, tained in the iron-safe clause, we having lost with instructions which are not executed, our detailed inventory, there was evidence will not suffice."
from which the jury might infer a waiver In the case of Marthinson v. N. B. Mer. Ins. of the requirements to produce the books ('o. (Mich.) 31 N. W. 291, it is said: "If an other than the detailed inventory; particuinsurance company is informed by the ex- larly as the adjuster, after making an estiamination of the assured by the adjusters be- mate of the loss pursuant to said agreement, fore a notary public, soon after the loss, of applied to plaintiffs, to whom the policies had certain acts constituting breaches of war- been assigned, for duplicate invoices of purranty, but does not then claim a forfeiture, chases of goods. (3) The limitation in a polbut allows successive proofs of loss to be icy of the power of an agent to waive certain made, to which, one after the other, it ob- conditions in the policy does not apply to the jects on various grounds of form, such action adjuster after the policy has become a deof the company will constitute a waiver of mand against the insurer.” forfeiture for the breaches of warranty re- In the case of Brown v. State Ins. lo. (lowa) ferred to, notwithstanding in making object- 38 X. W. 133, 7 Am. St. Rep. 49.), it is said: ions to the proofs the company says that 'it "Under an insurance policy requiring the inwaives none of its rights and defenses' under sured to keep his books of invoice secure from the policy, but expressly reserves each and fire, where he fails to do so the company every one.'"
waives its right to insist upon his failure as In the case of Titus V. Insurance Co., a forfeiture of the policy by requiring the 81 N. Y. 410, the Court of Appeals held: insured after the fire to incur the expense and "It may be asserted broadly that if by trouble of obtaining bills and vouchers of all any negotiations or transactions with the his goods received for several years before." insured after knowledge of the forfeiture it And the same court in the case of Corson v. recognized the continued validity of the Anchor Mut. Ins. Co. (Iowa) 85 N. W. 806, policy, or does acts based thereon, or requires said: "(1) Where a policy provided that it the insured by virtue thereof to do some act should be void if the assured failed to keep or incur some expense, the forfeiture is, as a a set of books in a fireproof safe, the failure matter of law, waived, and it is now settled to do so was waived by a statement of the in this court, after some difference of opin- adjuster that the assured would have to get ion, that such waiver need not be based upon duplicates for certain invoices in order to any new agreement or estoppel."
make required proof of loss, whereby assured In the case of Oshkosh Gaslight Co. et al. was induced, at considerable expense and v. Germania Fire Ins. Co. (Wis.) 37 N. W. trouble, to procure such duplicate copies. (2) 819, it is said: "Where, after proof of loss, an Where a policy provided that it should be adjuster, knowing of a breach of condition by void if assured failed to keep a certain set assured, continues to recognize the policy as of books in a fireproof safe, a waiver of such valid, and attempts to adjust the loss, there- failure also operates to excuse the production of such books in an action on the l'olioy. (3) agents of the company were not authorized Where, as a preliminary to adjustment of a to make. alter, or discharge contracts, or loss under a policy, assured signed an agree | waive forfeitures, but the company, notment stipulating that nothing the adjuster | withstanding this provision, sent renewal remight do, say, or write should be construed ceipts, signed by its secretary, and their use, as waiving any defense of the (ompany as when countersigned by its local manager and to conditions or requirements of the poli-y, cashier, was subject entirely to the judgment he was not thereby precluded from pleading of its local agent. It was his habit to give a waiver by the adjuster of a clause in the . Such receipts whenever the premiums were policy, since the adjuster, living power to paill after the time stipulated. His mode of mal:e such waiver, could not deprive himself dealing with persons taking out policies at of that power by his own act."
the local office, his use of renewal receipts, In the case of German Ins. Co., of Free- his acceptance of premiums after the day on port. Ill., v. Allen (Kan. Sup.) 77 Pac. 529, which they were payable, were all known it is saici: "Where the adjuster of a fire to the home company, and it retained the insurance company after a loss, learns of premiums thus received. The insured died a noncompliance by the insured with the pro- at the city of New Orleans on the 11th day of vision of the policy with regard to keeping November, 1872 * * * and the annual books, and, instead of declaring a forfeiture premium due at the latter date was not paid therefor, negotiates with the insured for
until ten days thereafter. A friend then paid the making of other and better proofs, ex
it to the agent and took from him a renewal tends the time to make proofs, and requires 'receipt. * * * Held, that the company, the insured. at some trouble and expense, to buy the agent's receipt of the premium, waivel submit to an examination under oath as to
the forfeiture for nonpayment at the stiputhe fire and the property destroyed, the com
A waiver can only be pany will be deemed to have waived the right justly claimed by the assured where the of forfeiture." Insurance Co. v. Bradford, 60
course of dealing by the company has been Kan. 82, 55 Pac. 335, and many more authori
such as to induce his action, and the company ties in the state courts, might be cited, but
should be apprised of the facts which create we think it unnecessary.
the forfeiture, and of those which will necesIn the case of Phoenix Ins. Co. v. Raddin,
sarily influence its judgment in consenting 120 U. S. 183, 7 Sup. Ct. 500, 30 L. Ed. (14,
to waive it." the Supreme Court of the United States,
In the case of Insurance Co. v. Eggleston, in an opinion of the court by Mr. Justice
96 C. S. 572. 24 L.Ed. 841, it is said: "Any Gray, says: “It follows that the only ques
agreement, declaration, or course of action tion upon the instructions of the court to
on the part of an insurance company which the jury which is open to the defendant on this bill of exceptions is whether, if insur
leads a party insured to believe that by con
forming thereto a forfeiture of his policy ers accept payment of a premiuin after they
will not be incurred, followed by due conknow that there has been a breach of a con
forinity on his part, will estop the company dition of the policy, their acceptance of the premium is a waiver of the right to avoid the
from insisting upon the forfeiture, though
it might be claimed under the express letter policy for that breach. Upon principle and authority, there can be no doubt that it is.
of the contract." And in the opinion of To holil otherwise would be to maintain that
Justice Bradley it is said: “We have recentthe contract of insurance requires good faith
ly in the case of Insurance Co. v. Norof the assured only, and not of the insurers,
toni, 96 U. S. 234, 24 L. Ed. 689, shown and to permit insurers, knowing all the facts,
that forfeitures are not favored in the to continue to receive new benefits from the
law, and that courts are always prompt to contract while they decline to bear its bur
seize hold of any circumstances that indicate dens."
an election to waive a forfeiture, or an We quote from the syllabus in the case
agreement to do so, upon which the party has of Insurance Co. v. Wolff, 95 U. S. 326, 24 L.
relied and acted." Ed. 387: "A. took out a policy of insurance We quote from the syllabus in the case upon the life of her husband. The premium of Knights of Pythias y. Kalinski, 163 U. S. was payable annually on the first day of No- 289), 16 Sup. Ct. 1047, 41 L. Ed. 163: "The vember. The policy stipulated for the pay- continued receipt of assessments upon an enment of the amount of the insurance within dowment certificate up to the day of the sixty days after due notice and proof of holder's death is, under the circumstances of the death of the insured, subject, however, to this case, a waiver of any technical forcertain express conditions. One of these con- feiture by reason of nonpayment of lodge ditions provided that, if the premiums were dues.” And in the opinion by Mr. Justice not paid on or before the days mentioned for Brown is the following: “Granting that the their payment, the company should not be continued receipt of premiums or assessments liable for the sum insured, or any part of it, after a forfeiture has occurred will only and that the policy should cease and deter- be construed as a waiver when the facts mine,
The policy declared that the constituting a forfeiture are known to the