Bailey v. Security Ins. Co.

• Decision Date: 15 March 1921
• Citation: 100 Or. 163,196 P. 252
• Parties: BAILEY v. SECURITY INS. CO. [a1]
• Court: Oregon Supreme Court

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 effect.

"The Court: Gentlemen, you will be called upon to find a verdict by direction of the court; the verdict is as follows: 'We, the jury in the above-entitled cause, find for the plaintiff in the sum of $150 by direction of the court."'

The plaintiff assigns error as follows:

"The Court erred:

"In failure to direct a verdict in accordance with the demands of plaintiff's complaint.

"In directing a verdict in favor of plaintiff for $150 only.

"In its instruction to the jury and in directing said verdict * * * that the plaintiff was not the sole and unconditional owner of the insured property.

"In failing to instruct the jury that plaintiff was the sole and unconditional owner in fee simple of the insured property and entitled to a verdict and judgment for the full amount sued for.

"In failing to direct a verdict for legal interest upon the amount of $1,050 from the 6th day of June, 1919.

"In instructing the jury that the plaintiff was not entitled to a reasonable attorney's fee.

"In that it did not instruct the jury to return a verdict for the full sum of $1,050 together with interest thereon at the rate of 6 per cent. per annum from the 6th day of June, 1919, and the further sum of $150, reasonable attorney's fees.

"In entering judgment for the sum of $150 only."

W. E. Phipps, of Medford, for appellant.

J. C. Veazie, of Portland (Veazie & Veazie, of Portland, and F. P. Farrell, of Medford, on the brief), for respondent.

BROWN, J. (after stating the facts as above).

The plaintiff assigns a number of errors relating to the failure of the court to give to the jury certain instructions, but the plaintiff has not presented a record whereby this court is authorized by law to review the proceedings complained of. We have searched the record brought from the lower court for the purpose of ascertaining and reviewing the alleged errors of the trial court. No exceptions are disclosed. Our Code thus defines the term "exception":

"An exception is an objection taken at the trial to a decision upon matter of law, whether such trial be by jury or court, and whether the decision be made during the formation of a jury, or in the admission of evidence, or in the charge to the jury, or at any other time from the calling of the action for trial to the rendering of the verdict or decision * * *" Or. L. § 169.

"No particular form of exceptions shall be required. The objection shall be stated, with as much evidence, or other matter, as is necessary to explain it, but no more; provided, however, that the bill of exceptions may consist of a transcript of the whole testimony and all of the

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