Ohio Farmers Insurance v. Cochran

Citations

• 104 Ohio St. (N.S.) 427

Syllabus

<p>Insurance — Definition—Law of contracts governs, when — Substantial performance sufficient, when — Waiver of terms or stipulations — Written or oral and ads or conduct — Policy provisions not conclusive, when — Question of fad and burden of proof — Charge to jury,</p> <p>1. An insurance policy is a contract between the insured and the insurer, whereby for an agreed premium one party undertakes to compensate the other for loss on a specified subject by specified perils.</p> <p>2. The long and uniformly' settled rule as to contracts requires only a substantial performance in order to recover upon such contract. Merely nominal, trifling, or technical departures are not sufficient to breach the contract.</p> <p>3. A waiver of any of the terms of a contract may be either by subsequent contract, written or oral, or by the acts and conduct of the parties.</p> <p>4. A written provision in a policy, “No officer, agent, or adjuster, or other representative, shall have power to waive or alter any of the provisions or conditions of this policy * * * unless when actually endorsed hereon or added hereto by such officer, agent, or adjuster,” etc., does not prevent a waiver of any provision of the policy by the acts and conduct of the insurance company by its duly authorized officers or agents.</p> <p>5. A waiver properly pleaded, to support which relevant proof , has been offered, in a trial to a jury, becomes a question of fact for the determination of the jury, the burden of.proving which by a preponderance of the evidence is upon the party relying upon the waiver.'</p> <p>6. A charge of the trial court upon the subject of waiver must be considered as a whole so far as it applies to the subject of waiver. If, judged by its four corners, the charge upon ' that subject fairly and correctly states the law applicable to the pleadings and the evidence, the cause, upon review, should not be reversed merely because it is possible the jury may have been misled. The question should be