Coats v. West Coast Fire & Marine Ins. Co.

• Decision Date: 08 June 1892
• Citation: 30 P. 404,4 Wash. 375
• Parties: COATS v. WEST COAST FIRE & MARINE INS. CO.
• Court: Washington Supreme Court

30 P. 404

4 Wash. 375

COATS v. WEST COAST FIRE & MARINE INS. CO.

Supreme Court of Washington

June 8, 1892

Appeal from superior court, Pierce county; FRANK ALLYN, Judge.

Action by F. S. Coats against the West Coast Fire & Marine Insurance Company. Judgment for plaintiff, and defendant appeals. Affirmed.

For concurring opinion, see 30 P. 850.

Snell & Bedford and C E Claypool, for appellant.

Easterday & Easterday, for respondent.

HOYT J.

The notice to settle the statement of facts on appealing this cause failed to name any place where such statement would be presented for settlement, and named a judge who did not try the case as the person before whom such settlement would be had. This being so, we are of the opinion that it was ineffectual for the purpose for which it was given, and that the motion of the respondent to strike the statement for that reason must be granted. The facts being out of the case, only one question is presented for our determination. Does the complaint state facts sufficient to constitute a cause of action? The action was brought upon a policy of insurance which was attached to the complaint. Under the provisions of said policy the company agreed to pay a sum not exceeding $1,000, subject to the provisions contained in said policy that the amount to be paid thereunder should not exceed the proportion which the amount insured under the policy bore to all the insurance. The complaint contained allegations which are conceded to be sufficient, with the exception that it contained no allegation that there was no other insurance upon the property, or that there was other insurance, giving the amount thereof. The contention of appellant is that one of these last-named allegations was absolutely necessary to determine the amount which could properly be claimed as due upon the policy upon which the action was founded. Its argument in this regard is that the promise of the company was not to pay an absolute sum, subject to certain conditions subsequent, but that its obligation was to pay such a sum, not exceeding $1,000, as the amount of the policy bore to the whole amount of insurance; and that for that reason the ascertainment of the amount of other insurance, or of the fact that there was no other insurance was a condition precedent, without which no liability under the policy could be established. The reasoning in this regard is somewhat technical and refined, yet we think it should have force, and, if the question of the sufficiency of this complaint had been seasonably raised in the court below by demurrer or other appropriate method. we think it should have been held insufficient. Such, however, was not the case. In the...