Cascade Fire & Marine Ins. Co. v. Journal Pub. Co.

• Decision Date: 10 December 1890
• Citation: 25 P. 331,1 Wash. 452
• Court: Washington Supreme Court
• Parties: CASCADE FIRE & MARINE INS. CO. v. JOURNAL PUB. CO.

25 P. 331

1 Wash. 452

CASCADE FIRE & MARINE INS. CO. v. JOURNAL PUB. CO.

Supreme Court of Washington

December 10, 1890

Appeal from superior court, King county.

Preston, Albertson & Donworth, for appellant.

Lewis & Gilman, for appellee.

STILES J.

1. In this case it clearly appears that proof of the loss was made July 10, 1889, and the terms of the policy were that the loss should not be payable until 60 days thereafter. The action was commenced September 6, 1889, on the fifty-eighth day after proof of loss was made. Under the letter of the policy therefore, the suit was premature. But it was agreed by both sides, and we believe correctly, as matter of law, that under such contracts as this, as the limitation is solely for the benefit of the insurer, for the purpose of enabling him to examine into the circumstances of the loss, and satisfy himself of the justness of the claim, and prepare himself for payment, so, if, at any time before the expiration of the time limited, the insurer has so satisfied himself, and thereupon communicates to the insured his unqualified refusal to pay the loss, all further claim to indulgence under the stipulation is waived, and suit may be forthwith commenced. Accordingly, in this case, the complaint alleged a demand and a positive refusal to pay, which laid upon the plaintiff the burden of proving such a refusal as the law requires, and, upon the defendant's motion for a nonsuit, made it incumbent upon the court to say whether or not any evidence had been produced tending to show a refusal. The court found against the defendant on this proposition, and its exception to this ruling requires that we examine the testimony on that point. The substance of the evidence in the record is that one of the officers of the plaintiff corporation, after making the proof of loss, called several times upon the secretary of the insurance company, and inquired as to the intentions of the latter company with regard to the policy in question. The secretary suggested, as a possible objection, that the transfer of the policy from the original insured had not been approved, and mentioned the probability that the matter would be referred to a committee of trustees to report. Several other visits of the appellee's agent resulted in nothing more definite except that a committee had been constituted to consider the policy, which committee, it was rumored to the appellee, had reported favorably to the payment of the loss. No attempt was made to establish the truth of this rumor, however, and it is material only as it shows the information chargeable to the plaintiff, and under which the suit was brought. Thus far the testimony was nothing more than what might have been expected as introductory to some positive declaration, and, being unsupported, was of no force whatever. Finally, however, the same agent of the plaintiff met one of the insurance company's trustees upon the street, and got into conversation with him upon the subject of the company's probable action; whereupon the trustee, who was apparently in some passion over certain remarks made by the president of the Journal Company derogatory to home insurance companies, remarked that "he guessed he would see what they would do about this matter," and there the subject was dropped. The introduction of this remark of the trustee was allowed by the court over objection, and is assigned as error. Regarding the trustee of the corporation as in some sense its agent, as he undoubtedly was, he would not, unless specially charged by the board, of which he was a member, with the duty of communicating its decision to the policy-holder, be authorized to bind it by his declaration, and still less could his mere street talk be taken as the expression of his principal. An agent's declaration binds his principal only when he is intrusted with the conduct of the particular matter in hand, and while he is engaged about the performance of the duty assigned to him. In this instance, the witness was asked what reason the trustee gave for not paying the demand, from which the court probably gathered that some formal declaration would be shown, as really coming from the company. But the witness' answer was not responsive, and did not touch the point of inquiry. This left the case with no showing of a refusal to pay, and therefore no warrant for the commencement of the action on the 6th day of September.

2. The proof of loss made by the claimant under the policy was no evidence, at the trial, of the property lost in the fire, or of its value. It was admitted, if at all, upon the cross-examination of plaintiff's witness, and at the request of the defendant, to show by the jurat attached to it the precise date on which it was made,-July 10th. The insurance was on "office furniture and library, $200; stones, press, and tables, $300; type, $500." By the proof of loss it is alleged that the furniture and library had a sound value of $500, and the loss was $264.60. The sound value of the stones, press, and tables was $256, and the loss was the same; while the types were worth $2,000, and the loss was $846.55. The total sound value was $2,856, the loss $1,467.15, and the policy was $1,000. The seventh paragraph of the complaint alleged the loss to have exceeded $1,000, and it was for the plaintiff to sustain that allegation with competent proof. We doubt whether the proof of loss was intended to be proof of value, when it was introduced, and even if it had been it could have served no such purpose. The proof of value having been omitted, there was no case for the jury.

3. The points discussed previously affect merely the plaintiff's recovery in this action. The remaining point goes to the right of the plaintiff to maintain any action at all. The policy in question was in the usual form of insurance contracts against loss by fire, being a printed blank, one of many like it, with the signatures of the president and secretary already affixed, and only requiring the signature of the local agent and its delivery to make it a contract...