Bailey v. Security Ins. Co.

CourtSupreme Court of Oregon
Writing for the Court[100 Or. 168] BROWN, J. (after stating the facts as above).
Citation100 Or. 163,196 P. 252
Decision Date15 March 1921
PartiesBAILEY v. SECURITY INS. CO. [a1]

196 P. 252

100 Or. 163

BAILEY
v.
SECURITY INS. CO. [a1]

Supreme Court of Oregon

March 15, 1921


Department 1.

Appeal from Circuit Court, Jackson County; F. M. Calkins, Judge.

Action by I. W. Bailey against the Security Insurance Company. From a judgment on a directed verdict against defendant, plaintiff appeals. Affirmed.

This is an appeal by the plaintiff, I. W. Bailey, from a judgment upon a directed verdict against the Security Insurance Company, a corporation, defendant and respondent. Plaintiff sued the defendant for $1,050 on a standard fire insurance policy. The complaint contained the usual averments in actions of this nature, including an allegation as to the ownership of the property. The defendant, by way of an affirmative defense, set up the provisions of the policy wherein it is made void in the event the assured is not the sole and unconditional owner of the insured property or is not the owner in fee simple of the ground on which the insured building is situate, and averred that the plaintiff was not such owner. The plaintiff further alleged that defendant insurance company, through its agent, "in an attempt to avoid the payment of said loss * * * falsely accused plaintiff of * * * burning said property, and that, for the reason that defendant had thus assumed to fix and determine * * * the time and origin of said fire, the plaintiff did not make out or present to said defendant such sworn statement, as provided by the policy, that defendant by the act of its agent waived the requirement as embodied in said policy, and that plaintiff was legally excused from that provision of said insurance policy." The defendant admitted that the plaintiff did not at any time present to defendant the sworn statement commonly called proof of loss required by the statutory policy.

Testimony was offered at the trial proving the destruction of the property, together with evidence of the ownership of the land upon which the building was situate, also as to plaintiff's examination by the legally constituted authorities, at which examination it appears that defendant's agent was present. At the conclusion of the testimony upon the part of plaintiff and defendant, the record shows the following colloquy:

"Mr. Phipps: At this time I ask your honor for a directed verdict. * * * Pardon me, I didn't prove my attorney's fees in this case. May I open it up for that? * * *

"The Court: Then the case is rested, is it?

"Mr. Phipps: Yes, your honor.

"The Court: Now you want your motion for a directed verdict?

"Mr. Phipps: Yes, your honor. Now I move for a directed verdict at this time.

"The Court: Are you (Mr. Veazie) satisfied to let it stand as it is? Do you wish to be heard on the subject?

"Mr. Veazie: * * * I don't know that we are in the same position as to what our motion would be for a verdict. * * * We will ask to be heard later on a motion.

"The Court: Well, it seems rather unfair to ask the court to go and hunt up the authorities.

"Mr. Veazie: I think I should make some statement; I think, as far as the action goes for the personal property, that we would not dispute that plaintiff could recover for his personal property on the terms of the policy, that is, so far as the insured value is concerned, and there is no evidence, and the only evidence as to value is the evidence of the plaintiff's wife; there is no dispute there, but there will be two questions up, and one is that there is no proof of loss, and the other is no waiver shown, and the other is as to the * * * title to the real property. * * *

"The Court: Do you concede that the plaintiff was entitled to $150?

"Mr. Veazie: No; I don't concede that, because there was no proof of loss and no waiver of it.

"The Court: Then you don't concede he is entitled to anything?

"Mr. Veazie: No.

"The Court: I thought from the way you spoke you were willing to concede that he was entitled to the personal property.

"Mr. Veazie: So far as that is concerned, I will say this: We are willing to pay him for it right now. * * *

"The Court: Well, the court wants to know what to do. If you are willing to concede $150, then in any event I can instruct the jury to return a verdict for $150, but if you are not willing I will take up that phase of it, as well as the other. * * *

"Mr. Veazie: We will concede a verdict of $150.

"The Court: Then it only leaves a question * * * of the validity of the insurance for $900 on the house?

"Mr. Veazie: Yes. We are willing to submit what authorities we have on the subject, and we would be glad to submit those.

"The Court: I would be glad to receive those which you have and would like to look up the question to the sole ownership. * * *

"The Court: I believe, Mr. Veazie, you asked to amend your answer in some respect.

"Mr. Veazie: I asked to amend our answer to conform with the facts shown by these deeds. * * *

"Mr. Phipps: Yes, your honor. * * * I have no objection to his amending the answer to that...

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7 practice notes
  • Frangos v. Edmunds
    • United States
    • Supreme Court of Oregon
    • October 22, 1946
    ...v. Stout Lumber Co., 123 Or. 647, 263 P. 881; McIntosh Livestock Co. v. Buffington, 108 Or. 358, 217 P. 635; Bailey v. Security Ins. Co., 100 Or. 163, 196 P. 252; Marks v. First National Bank, 84 Or. 601, 165 P. Plaintiff contends, however, that the rule as stated in the cited cases has sin......
  • Lappy's Estate, In re
    • United States
    • Supreme Court of Oregon
    • November 24, 1954
    ...faith and had cared for the estate, the heir, who had never been in this country, being in no position to care for it. The court said in 100 Or. 163, 196 P. '* * * The usual objection to paying costs from an estate in a proceeding to contest a will is where the contestant is unsuccessful, a......
  • Hesse v. Mittleman
    • United States
    • Supreme Court of Oregon
    • January 2, 1934
    ...of this court, it is not simply error, but error legally excepted to, that constitutes ground for reversal. Bailey v. Security Ins. Co., 100 Or. 163, 196 P. 252. By the last clause of said rule 12, this court reserves the right in furtherance of justice to notice on [145 Or. 425] its own in......
  • John Deere Plow Co. of Moline v. Silver Mfg. Co.
    • United States
    • Supreme Court of Oregon
    • May 11, 1926
    ...cognizance of the ruling of the court in directing a verdict, since no exception was taken thereto ( Bailey v. Security Insurance Co., 100 Or. 163, 196 P. 252), but we have preferred to consider the case on its merits. The judgment of the lower court is affirmed. RAND, BEAN, and BROWN, JJ.,......
  • Request a trial to view additional results
7 cases
  • Frangos v. Edmunds
    • United States
    • Supreme Court of Oregon
    • October 22, 1946
    ...v. Stout Lumber Co., 123 Or. 647, 263 P. 881; McIntosh Livestock Co. v. Buffington, 108 Or. 358, 217 P. 635; Bailey v. Security Ins. Co., 100 Or. 163, 196 P. 252; Marks v. First National Bank, 84 Or. 601, 165 P. Plaintiff contends, however, that the rule as stated in the cited cases has sin......
  • Lappy's Estate, In re
    • United States
    • Supreme Court of Oregon
    • November 24, 1954
    ...faith and had cared for the estate, the heir, who had never been in this country, being in no position to care for it. The court said in 100 Or. 163, 196 P. '* * * The usual objection to paying costs from an estate in a proceeding to contest a will is where the contestant is unsuccessful, a......
  • Hesse v. Mittleman
    • United States
    • Supreme Court of Oregon
    • January 2, 1934
    ...of this court, it is not simply error, but error legally excepted to, that constitutes ground for reversal. Bailey v. Security Ins. Co., 100 Or. 163, 196 P. 252. By the last clause of said rule 12, this court reserves the right in furtherance of justice to notice on [145 Or. 425] its own in......
  • John Deere Plow Co. of Moline v. Silver Mfg. Co.
    • United States
    • Supreme Court of Oregon
    • May 11, 1926
    ...cognizance of the ruling of the court in directing a verdict, since no exception was taken thereto ( Bailey v. Security Insurance Co., 100 Or. 163, 196 P. 252), but we have preferred to consider the case on its merits. The judgment of the lower court is affirmed. RAND, BEAN, and BROWN, JJ.,......
  • Request a trial to view additional results

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