Burbank v. Pioneer Mut. Ins. Ass'n

• Decision Date: 27 September 1910
• Court: Washington Supreme Court
• Parties: BURBANK et al. v. PIONEER MUT. INS. ASS'N.

110 P. 1005

60 Wash. 253

BURBANK et al. v. PIONEER MUT. INS. ASS'N.

Supreme Court of Washington

September 27, 1910

Department 2. Appeal from Superior Court, Lincoln County; C. H. Neal Judge.

Action by J. E. Burbank and another, co-partners as J. E. Burbank &amp Co., against the Pioneer Mutual Insurance Association. From a judgment for plaintiffs, defendant appeals. Affirmed.

H. A P. Myers, for appellant.

J. T Mulligan and Martin & Wilson, for respondents.

CROW, J.

The appellant's controlling contention is that the trial court erred in denying its motion for judgment notwithstanding the verdict of the jury. On August 12, 1904 the appellant issued to the respondents an insurance policy which did not upon its face contain any stipulation requiring the assured to make any proofs of loss, nor did it make any reference to conditions which appear in fine print upon the back of the policy. The property insured was hay and grain located in a warehouse at Cheney, Spokane county, Wash. There was evidence that, on April 7, 1905, the property was totally destroyed by fire; that appellant had a local agent, one Webb, then residing in Cheney, who, the day after the fire, called at appellant's branch office in Spokane and gave notice of the loss; that appellant directed one McKowen to adjust the loss, as its representative; that he visited Cheney about three weeks later, had a brief interview with the respondent Graham, who offered to give any information desired, and who permitted an inspection of all books belonging to the assured which had not been destroyed in the fire; that McKowen left Cheney without making any final adjustment or reporting to respondents; that he never returned; that respondents called on appellant's representative in charge of its branch office att Spokane, who referred them to McKowen as having complete charge of the adjustment of the loss; that they immediately called upon McKowen, who, in substance, notified them that the company was not liable, as they had sustained no loss; and that appellant's agent in charge of its Spokane office denied liability to respondents, who, without making further proofs, commenced this action. This evidence, although disputed, must, upon a motion for judgment, be accepted as true. Appellant pleaded as a part of the contract of insurance certain printed matter upon the back thereof, which, in substance, required the respondents to make proofs of loss to appellant within 60 days after the fire, and furnish other information if demanded, and further stipulated that the making of such proofs of loss and the giving of such information should be a condition precedent to the right of the assured to maintain an action upon the policy. Appellant further alleged that no proofs of loss had been made by respondents, that by reason thereof their claim had never been adjusted, that no sufficient or satisfactory proof of the amount of their loss had ever been furnished by them or received by appellant, that the appellant had never refused to pay the loss, and that by reason of the plaintiffs' failure to furnish the required information and proofs there is nothing due upon the cause of action pleaded herein. Upon the trial the face of the policy above mentioned was offered in evidence by respondents. Thereafter the appellant offered in evidence certain conditions appearing in fine print upon the back of the policy, but to which it made no reference, and appellant now contends that the trial judge erred in rejecting such offer.

Appellant's contention is that it was the duty of respondents to make proofs of loss within 60 days after the fire as a condition precedent to a recovery herein; that they utterly failed to do so; and that, by reason of such failure, the motion for judgment should have been sustained. The respondents, while denying that the policy required them to make any proofs of loss whatever, contend that in any event the making of the same was waived by appellant. Although the trial judge excluded the printed matter which appeared on the back of the policy, he instructed the jury that it was necessary for the respondents to make proofs of loss, and furnish such information as the appellant might require, and to do so within 60 days after the fire as a condition precedent to a recovery herein, unless the making and furnishing of such proofs and information had been waived by appellant. Under our construction of the policy, this instruction was erroneous and prejudicial as against the respondents. The error, however, was one of which appellant cannot complain. The jury by their verdict necessarily found a waiver by, appellant, and the evidence sustains...