
    WHITE v. SAFE GUARD INS. CO.
    No. 11729
    Opinion Filed Oct. 23, 1923.
    Rehearing Denied Dec. 18, 1923.
    1. Insurance — Fire Policy — Compliance— • •..Preliminary Proof of Loss..
    In a ease of loss by fire under the form of policy adopted in this state, where the insured promptly.. notifies the company’s agent orally, and the company; acting upon such oral notice, sends.an adjuster, who investigates the circumstances of the fire and the extent of the loss, and directs the insured to furnish preliminary proofs of loss, which is done immediately, but not in the formal and detailed .manner provided in the policy, and ' where’-such - proof of I0S3 is thereafter retained by the company without objection to its form or Substance until after the 00 days for malting same have expired, such action by the' company" constitutes an"-acceptance thereof as--a sufficient compliance with the provisions of- the policy relating to preliminary proofs. ■
    2. Same — Pleadings — Issues Raised — Sufficiency of Evidence oh Demurrer.
    In such a case where pláintiff expressly alleges delivery of preliminary proof and defendant-answers this" allegation by a general denial only, the issue raised is whether , such proof , was furnished, and not whether it is sufficient in form and detail, and'where the paper which was delivered to Ihe company by the insured is introduced in evidence .and purports and was intended to be a proof of loss, such evidence, together with the oral testimony; is sufficient to withstand demurrer based on the formal insufficiency of such proof of loss.
    (Syllabus by Logsdon, C.)
    Commissioners’ Opinion, Division No. 1-
    ■ "Error from District Court, Oklahoma County: Hal Johnson, Assigned Judge.
    Action by C. E. White against Safe Guard Insurance Company of New York, a ■ corporation, to recover under a certain fire insurance' policy. Defendant’s demurrer to the evidence of plaintiff was sustained, and plaintiff brings error.
    Reversed.
    The facts are sufficiently stated in the opinion. The parties will be hereafter referred to as plaintiff and defendant, respectively, as they appeared in the trial court.
    George A. Fitzsimmons, for plaintiff in error.
    Rittenhouse & Rittenhouse. for defendant in error.
   Opinion by

LOGSDON, C.

Plaintiff's principal contention, and the one which, must be decisive on this appeal, is that the trial court erred in sustaining a demurrer to plaintiff’s evidence. This ruling by the court was based upon evidence relating to proof of loss under the terms of the policy. The applicable provisions of the policy sued on read as follows:

"If fire- occur the insured shall give immediate notice of any loss thereby in' writing to this company, protect the property from further damage, forthwith separate the damaged and undamaged, personal property, put it in the best possible order, make a complete inventory oí the same, stating the quantity and cost of each article and the amount claimed thereon; and, -within sixty days after the fire, unless such time -is extended in writing by this company, shall render a statement to this company, signed mid «worn to by said insured, stating .the knowledge and belief of the insured as Ú the time and origin of the fire; the interest of the insured and of all others in the property; the cash value of each item thereof and the amount of loss thereon; all- in-cumbrances thereon; , all other insurance, whether valid or not, ■ covering any of said property; and a "copy of all the descriptions and schedules in all "policies,; any changes in the title, use,' occupation, location, possession, or exposures of said property since the" issuing of this policy; by whom and for what purpose',any" building: herein described and the several parts thereof ’ were occupied at the time of fire;. and shall furnish, if required, verified plans and specifications- of any building, fixtures, or, machinery destroyed or damaged; and shall also, if required, furnish a certificate <?f ihe magistrate or notary public (not interested in the claim as a creditor or otherwise, nor related to the insured) living nearest the place of fire, stating that he has examined the circumstances and _ believes the insured has honestly sustained loss to the amount that such magistrate or notary public shall certify. This company shall not be held to have waived any provision or condition of this policy or any forfeiture thereof by any requirement, act, or proceeding on its part relating to the appraisal or to any examination herein provided for; and the loss shall not become payable until sixty das's after the notice, ascertainment, estimate, and satisfactory proof of the loss herein required have been received by this company, including an award by appraisers when appraisal has been required. No suit or action on this policy, for the recovery of any claim, shall be sustained in any court of law or equity until after full compliance by the injured with all the foregoing requirements, nor unless commenced within twelve months next after the fire.”

Plaintiff pleaded that he furnished proof of loss two days after the fire. Defendant by its answer tendered no issue as to the sufficiency (if this compliance, but as to this allegation of plaintiff it 'entered a general' ’ denial. Defendant' pleaded several special defenses, but none of them were directed to the above allegation. Plaintiff’s reply was directed to these special defenses,

This condition of the pleadings and this presentation of the issues joined will be pertinent in considering the testimony shown in the record in its relation to the principal ground of error presented.

Plaintiff’s testimony established, or tended to establish, the following .facts: That the policy of insurance was executed and delivered April 14, 1919, covering certain household goods and wearing apparel located at 1104 East avenue, Oklahoma City; that a fire occurred at this1 place June 22, 1919, resulting in damage and loss of the goods covered by the policy; that notice of the fire and loss was given to the agent of the defendant, not in writing as required by . the above provisions, but orally; that defendant at once sent an adjuster to investigate the fire and view the loss; ihal this adjuster directed plaintiff! to io»ke out proof of loss; that an instrument i¡ear-ing a heading “Proof of Loss’’ was thereafter made out by plaintiff and delivered io defendant’s agent June 24, 1919; and by him turned over to Bates Adjustment Co., the adjuster who had previously investigated the fire and loss; that the Biates Adjustment Company, after receiving this instrument from defendant’s agent, never advised ‘plaintiff of its insufficiency 'as a proof of loss, ñor requested him to make any other different or additional proiof; this instrument was retained by the Bates Adjustment Company, until October 1C. 1919, when it was returned to plaintiff with a denial of liability. This action was commenced December 31, 1909. At the close of plaintiff’s evidence defendant demurred thereto, the demurrer being in the following language:

“Comes now the defendant and demurs to the evidence of the plaintiff and files herein demurrer to ’Such evidence, and specifically demurs on the ground the evidence discloses that the plaintiff has not complied with the terms of the policy in respect to submitting proof of loss.”

This demurrer was sustained by the court.

Defendant’s contention upon the demurrer wtas and is that the proof of loss prepared and delivered to defendant by plaintiff was insufficient in form and detail to constitute proof of loss. This issue was not raised by the general denial. Plaintiff had pleaded;

“That ón ór about the. 24th day of . j.uúe, 1919, this plaintiff furnished the" defendant with proof ’ of’ Said loss arid interest, ■ land otherwise performed all the conditions of said policy on his part.” ■ "

The phrase “and otherwise performed ail the conditions of said policy” refers to ¡Conditions antedating the loss /and which;might affect the validity of the contract. " .The subsequent, condition-relating to notice and proof of loss-could not affect the validity of the contract.' liability thereunder being already fixed or excused at the time of the fire, hut it merely affected the remedy and determined the right to sue. By the generlal denial defendant /said simply tas) to this particular allegation,, that plaintiff had not submitted proof ’of loss. Under the record here presented it must be presumed, for the purpose of the demurrer, that the facts are as shown by plaintiff’s testimony, strengthened ¡by ail" inferences to be reasonably drawn therefrom. The notice and proof of toes iare not a part of the contract. They are required after loss has occurred solely for the benefit and information of' the insurance company, Where, as here, notice is given immediately. though orally, and the company acts thereon by investigation on the day succeeding the fire; and where, as here, the agent of the' company making the investigation directs insured to make and deliver proof of Ios>>, which is done the second day after the fire, though not in form and detail as directed by the’policy; and where, as here, such proof so submitted is retained by tbe company for a period of three months and 22 days without objection to its form or to the sufficiency of the information therein contained, it must be presumed that the company was satisfied with such proof, supplemented by its own investigation.

“The law requires of the insurer entire good faith and fair dealing in its transactions with the insured, and hence the insurer is bound to promptly advise the insured of any defects of a formal character in the proofs or notice furnished in season. to the end that the assured may have an opportunity to correct them. * * * An insured has the right to assume, until advised to the contrary, that the proofs of loss served by him were sufficient.” Kerr on Insurance, section 194.
“The law is settled that where the assured, in attempting in good faith to comply with the terms of the policy, furnished to the insurance company within the time stipulated what purports and is intended to ne proofs of l.oss, the company must point out particularly any defects therein if It intends to ■ rely,: pa ./them-.”; Elliott on Insurance,-, section 31Í,- :
,-“if-notice and proofs of loss are giren to the •' insurers which they consider via any way defective, good faith requires that they should notify , the insured of such fact within, a reasonable time/’ Joyce on Insurance, section 8362.

./This court has adopted the principle of. the above authorities and consistently adhered to it in the following cases: Arkansas Insurance Company Co. v. Cox, 21 Okla. 873, 98 Pac. 552; St. Paul Fire & Marine Ins. Co. v. Mittendorf, 24 Okla. 651, 104 Pac. 354; St. Paul Fire & Marine Ins. Co. v. Griffin, 33 Okla. 178, 124 Pac. 300; Insurance Co. of. North America v. Cochran, 59 Okla. 200, 159 Pac. 247; State Mutual Ins. Co. v. Green, 62 Okla. 214, 166 Pac. 105; Continental Ins. Co. v. Norman, 71 Oklahoma, 176 Pac. 211.

' It is further contended by defendant that nO' 'waiver or estoppel was pleaded. This is true. Neither were they, relied on, but on the contrary plaintiff relied on the sufficiency of his proof of- lose- furnished to defendant two days after the firé’. -Waiver or estoppel were neither involved because there had been no default- by plaintiff in this réspect. If what he furnished a-s proof of loss was defective or insufficient defendant accepted and retained it without objection until the 60 days expired, and it was thereafter precluded from denying its own acceptance thereof. It is only in case of default in furnishing proof, or default in meeting requirements after notice of defects in the proof furnished, that waiver or estoppel becomes a staff of support,

This distinction is further illustrated by an exhibition of the authorities cited and relied upon by defendant to support its demurrer to the evidence. In Gray v. Reliable Ins. Co., 26 Okla. 592, 110 Pac. 728, and Shawnee Fire Ins. Co. v Beaty, 64 Okla. 61, 166 Pac. 84, the petition exhibited the policy, as in this case, but did not plead that notice and proof of loss were given, and pleaded neither waiver nor estoppel. In each case a demurrer to the petition was sustained. In Nance v. Oklahoma Fire Ins. Co., 31 Okla. 208, 120 Pac, 948, no proof of loas was made prior to bringing the action, and no waiver or estoppel was pleaded.. As waiver or es-toppel could not be proved in the absence of allegations, and as no preliminary proof of loss was submitted, the action was held to be -prematurely brought. In Palatine Ins. Co. v. Lynn, 42 Okla. 486, 141 Pac. 1167, furnishing of -proof of loss was pleaded, but ho testimony was offered to support this allegation, and demurrer to -the- evidence was sustained. In NorthT British &. Mercantile Ins. Co. v. Lucky Strike Oil & Gas Co., 70 Oklahoma, 173 Pac. 845, performance of all conditions was alleged, but no testimony offered to show that proof of loiss was made within 69 days. The case was reversed for failure of proof. In St. Paul Fire & Marine Ins. Co. v. Mittendoff, 24 Okla. 651 (sp. cit. 662), 104 Pac. 354, also cited and relied on by defendant, this court said:

‘•‘Upon the undisputed' facts plaintiffs wei-ó entitled to have the law declared to be that defendant by retaining, without objection, thé proof of loss furnished by them waived all objections thereto, including the objection that the same was not sworn to by the insured."

The preliminary proof of loss introduced in evidence in this case was as follows:

‘'C. E. Wihite. Proof of Loss.
“1104 Easton Aye.. -
“Fire occurred about1 12:15 p. m., 1 June 22, 1919.”
(Then follows a list of the articles with separate and total values stated.)
“The prices I have ‘ submitted is not the real value of the goods I lost.
(Signed) “C. E. White,
“323.W. Grland Ave.
•‘Return.”
(Indorsed on back.)
“Bates Adjustment Co., 519 Mercantile Bldg., City.”

When this exhibit was. offered In evidence the objection made to It was in this language:

“To which the defendant objects as incompetent, irrelevant and immaterial, not being sufficiently identified, not within the issues of the case, not tending to prove any issuable fact in this case; be hasn’t alleged -any waiver of proof of loss and says it was given. No time fixed as to when he gave it to Mr. Graves. Object to it for the further reason it has no bearing on this case as not -being any article or paper mentioned in the insurance policy.”

Under the condition of the pleadings, an heretofore adverted to, and under the issues presented thereby,- these objections were properly overruled. This exhibit being properly admitted in evidence, and the other facts being as admitted by the demurrer, there was ample evidence to take the cause to the jury on plaintiff’s case in chief. Upon the record here presented, and under the authorities a-bove cited, it was error to sustain the demurrer to plaintiff’s evidence.

Only one other proposition is presented in plaintiff’s brief, and this relates to the rejection- i:a-s ¡.evidence óf a- certain-'-letter claimed-to.-be-.an : admission , of liability by defendant. As; this, question will not arise under, the same, circumstances,, if. at all, on a.,retrial it will,.not be passed upon at this time..

For" the' reasons herein given the judgment of the trial court should be reversed and this cause remanded for a new .trial.

■•By the Gourt: It is so ordered.  