Barbour v. St. Paul Fire & Marine Ins. Co.
Decision Date | 04 April 1918 |
Docket Number | 14599. |
Citation | 101 Wash. 46,171 P. 1030 |
Court | Washington Supreme Court |
Parties | BARBOUR et ux. v. ST. PAUL FIRE & MARINE INS. CO. |
Department 2. Appeal from Superior Court, Snohomish County; Guy C Alston, Judge.
Action by Thereon T. Barbour and wife against the St. Paul Fire & Marine Insurance Company. Judgment for plaintiffs on directed verdict, and defendant appeals. Affirmed.
H. T Granger, of Seattle, for appellant.
J. W Russell, of Seattle, for respondents.
This is an action on a policy of insurance brought by Theron T. Barbour and Mary Barbour, his wife, against the St. Paul Fire & Marine Insurance Company. At the close of the evidence, the trial judge instructed the jury to return a verdict in favor of the plaintiffs. The defendant insurance company has appealed.
Appellant contends: (1) That plaintiffs did not comply with the provisions of the policy requiring the insured, if requested by the company, to submit to an examination under oath, and subscribe the same, which is made a condition precedent to sustaining an action on the policy; (2) that the policy was canceled by mutual consent prior to the time the loss occurred. The policy provided:
At the request of the insurance company Mrs. Barbour appeared before a notary public, and was examined under oath by the attorney for appellant. She was given a carbon copy of her testimony to correct before signing. She did not sign the original copy of the examination until after the present action had been commenced; the examination being introduced in evidence by appellant.
When Mrs. Barbour appeared before the notary public and submitted to an examination under oath, there was a substantial compliance with this provisions of the policy. The insurance company had obtained the information which it was designed to secure. The signing of the written result of the examination was a purely incidental matter.
But, even if this were not so, when we look to the words of the policy, which it is well settled must be strictly construed against the insurance company, we do not find that it provides that no action shall be 'commenced,' but that no action shall be 'sustainable.' At the time plaintiffs sought to sustain their action by proofs, the examination had been signed and was in the hands of the defendant. All that the policy required had been performed.
To decide whether or not the policy was canceled by mutual consent prior to the time of the loss requires a discussion of the facts. The plaintiffs were the owners of a house and lot in Edmonds, Wash. The house and its contents were insured in the Orient Insurance Company for $1,900. The property was mortgaged; and the policy, which was payable to the mortgagee as its interest might appear, was in the possession of the mortgagee. In August, 1915, about the time the policy was due to expire, Mr. Barbour called on the insurance agent, Rudolph Damus, in Seattle, through whom he had obtained the insurance, and told him that he wanted it renewed without however, specifying any particular company. Mr. Damus told him that he would attend to the matter. Damus, who was not the agent of the defendant company, and in this instance was action as a broker, ordered the insurance from the defendant's local agent. The policy was issued and delivered to Damus, or his office, but never reached the plaintiffs, probably, as the record suggests, being lost in the mail. About the 1st of the following September, Mr. Barbour received a statement of his account from the mortgagee, which statement included an item of $22.80 for an insurance premium. He testifies that he supposed this was the premium on the policy he had ordered through Damus. In July, 1916, nearly a year later, while Mr. Barbour was in British Columbia, Mrs. Barbour received a notice from Damus to the effect that $22.80 was due him as a premium on insurance. She immediately investigated, and found that the policy secured by Damus was not the one covered by the statement sent by the mortgagee, and that the mortgagee had secured insurance in the same amount, $1,900, on the property in...
To continue reading
Request your trial-
Pearson v. Washingtonian Pub. Co.
...Southern Fire Ins. Co. v. Knight, 111 Ga. 622, 36 S.E. 821, 822, 52 L.R.A. 70, 78 Am.St.Rep. 216. Cf. Barbour v. St. Paul Fire & Marine Ins. Co., 101 Wash. 46, 171 P. 1030. In Chelmsford Co. v. Demarest, 7 Gray, Mass., 1, a case involving an action on a suretyship bond of a public official,......
-
Williams v. North River Ins. Co.
...designed to secure. The signing of the written result of the examination was a purely incidental matter." Barbour v. St. Paul Fire & Marine Ins. Co., 101 Wash. 46, 171 P. 1030 (1918). The requirement has been held to be satisfied by a signing after suit was filed, Agricultural Ins. Co. of W......
-
Herman v. Safeco Ins. Co. of America
...submission to the examination could constitute substantial compliance with that policy's provision. See Barbour v. St. Paul Fire & Marine Ins. Co., 101 Wash. 46, 171 P. 1030 (1918) (court found substantial compliance when insured submitted to examination under oath, but failed to sign it un......
-
Artificial Ice Co. v. Reciprocal Exchange
... ... in several other companies. A fire occurred on October 17, ... 1918, injuring or destroying ... Co. v. Hartford F ... Ins. Co. , 95 Wis. 226: ... ... "The right ... Ins. Co. v ... Clarke , 116 Md. 622; Barbour v. St. Paul F. & M ... Ins. Co. , 101 Wash. 46 (171 P ... ...