American Cent. Ins. Co. v. Boyle

Opinion by PRYOR, C. This action was commenced on the 26th day of February, 1914, in the district court of Coal county, Okla., by Chas. May, constable, against J. W. Boyle and the American Central Insurance Company, to recover on a certain insurance policy given to insure against loss by fire. Tbe questions presented on appeal arise out of tbe controversy between the insurance company and J. W. Boyle, the insured. The policy sued upon was issued by tbe insurance company to J. W. Boyle* insuring property belonging to the said Boyle. In his answer to the-petition of the-plaintiff, Chas- May, and in his cross-peti-i tion against the said insurance company, the said . Boyle claimed that he was- the owner of- the property insured, and was entitled to- the proceeds provided ..for in the policy for the loss sustained by - reason of the destruction of his property. The defendant the American Central.. Insurance Company demurred to the answer and,,cross-,, petition of J, W. Boyle on the ground that the cross-petition did not state facts'sutti-cient to constitute a c-ause of action against it. . The demurrer was overruled by the trial court, and on trial judgment was rendered for the cross-petitioner, J. W. Boyle, against the insurance company, from which • judgment the insurance company appealed. There are .several questions raised, on - appeal by tbe insurance company, but the. only question that is deemed necessary to decide is tbe question as to whether, or not tbe petition states facts sufficient to constitute a cause of, action. The policy, sued upon is tbe Oklahoma standard' fire insurance policy provided for in section 3482, Revised, Laws of 1910, which contains the provision that tbe property shall be insured against loss while located on premises described in the policy, and not elsewhere. It is the contention of the insurance company that the cross-petition of the insured, Boyle, does not state a cause of action in that it fails to allege that the property at the time that it was alleged to have been destroyed by fire was located in tbe building in which it was located at the time of the issuance of the policy, and in which it was to remain during the continuance of the policy. The allegation of the cross-petition in regard to the destruction of the property covered by the insurance policy is as follow® : “That thereafter, to wit, on or about the 9th day of January, A. D. 1914, the defendant’s stock of merchandise covered by said policy of insurance was totally destroyed by fire; that tbe value of said stock of merchandise so destroyed by fire at tbe time of its loss was the sum of eight hundred dollars (1800.00).” This question has been presented squarely to this court in several cases, and it has been decided by this court that an allegation that ■ *196 the property was located at the time of its destruction on the premises or in the building as provided in the policy is essential to the legal sufficiency of the petition, and a petition that fails to contain this allegation is fatally defective. Miller v. Conn. Fire Ins. Co., 47 Okla. 42, 151 Pac. 605. There, was neither amendment made at the trial of said canse, nor is there any evidence curing this defect in the petition. Therefore, under the above authority, it must be held that the petition fails to state facts sufficient to constitute a oause of action. It follows that the judgment of the lower court -should be reversed, and the cause remanded, with directions for a new trial- ®y the Court: It is so ordered.