AETNA INS. CO. v. HUGHES

AETNA INS. CO. v. HUGHES
1926 OK 809
249 P. 908
120 Okla. 7
Case Number: 17005
Decided: 10/12/1926
Supreme Court of Oklahoma

AETNA INSURANCE CO.
v.
HUGHES.

Syllabus

¶0 1. Insurance--Action on Fire Policy--Value and Location of Personalty at Time of Fire as Necessary Allegations.
In order to constitute a cause of action in a suit on a fire insurance policy, it is necessary to allege the value of the property at the time of the fire; and where grain is insured against loss by fire while in the barn and cribs, the location of the grain at the time of the fire must be alleged.
2. Same--Sufficiency of Allegation as to Proof of Loss.
An allegation that all the terms and conditions of the policy sued on have been complied with is a sufficient allegation of proof of loss as against a general demurrer.
3. Same--Demurrer to Evidence as to Proof of Loss.
In a suit on a policy which provides that all claims for loss should be forfeited by failure of the insured to furnish proof of of loss within 60 days, unless the time is extended in writing by the insurer, where it is alleged that all the terms and conditions required of the insured have been complied with, and no evidence is offered tending to show that proof of loss was made within 60 days, or that the time had been extended in writing, a demurrer to the evidence should be sustained.
4. Same--Evidence of Waiver of Proof of Loss Inadmissible Under Allegations of Full Compliance with Conditions of Policy.
Where it is alleged that all the terms and conditions of the policy have been complied with, evidence of waiver of proof of loss is inadmissible.

Commissioners' Opinion, Division No. 1.

Error from County Court, Roger Mills County; E. E. Tracy, Judge.

Action by G. M. Hughes against Aetna Insurance Company. Judgment for plaintiff, and defendant appeals. Reversed.

F. A. Rittenhouse, John F. Webster, Frank E. Lee, Olive R. Rittenhouse, and R. U. Livesay, for plaintiff in error.
A. A. Brown, for defendant in error.

RAY, C.

¶1 This appeal is from a judgment on a fire insurance policy. The first ground relied on for reversal is that the court erred in overruling a general demurrer to plaintiff's petition.

¶2 The property insured and alleged to have been destroyed by fire was a barn and sheds attached located on the east half of the southeast quarter, section 9, township 11, range 26, Roger Mills county, insured for $ 800, and grain and seeds while in dwelling, granaries, barns and cribs, insured for $ 200.

¶3 The contention is that the allegations of the petition are insufficient to show an insurable interest at the time the policy was written, the locality or value of the property at the time of the fire, or that proofs of loss were furnished within 60 days after the fire as required by the terms of the policy.

¶4 We think that an insurable interest at the time the policy was written and that proofs of loss were furnished to the insurer within 60 days after the fire, were sufficiently pleaded. It is alleged: That plaintiff is a farmer residing on the southeast quarter of section 9, township 16, range 26, in Roger Mills county, and was so residing there on the 17th day of August, 1921 (the day the policy bears date), and at all times since that date the owner of the land in fee, together with the appurtenances and improvements thereon; and that the barn and other property on the premises were covered by the policy. It is also alleged that plaintiff has performed all agreements, stipulations, and conditions in said policy required of him.

¶5 The petition does not allege the value of the barn and sheds at the time of the loss, nor that the grain and seeds were in the dwelling, granary, barns, or cribs at the time of the fire. These are necessary allegations to constitute a cause of action. Germania Fire Ins. Co. v. Barringer, 43 Okla. 279, 142 P. 1026; Miller v. Connecticut Fire Ins. Co., 47 Okla. 42, 151 P. 605; American Central Insurance Co. v. Boyle, 69 Okla. 195, 171 P. 714; Security Ins. Co. v. McAlister, 90 Okla. 274, 217 P. 430. The demurrer should have been sustained.

¶6 The demurrer to plaintiff's evidence also should have been sustained. The policy provides:

"In the event of loss by fire * * * the assured shall * * * within 60 days after the occurrence of said fire or damage, unless such time is extended in writing by the company, render to the aforesaid office a particular account thereof, signed and sworn to by the assured. * * * All claims for loss or damage shall be forfeited by failure of assured to furnish proofs of loss or damage within the time and in the manner above specified."