Davis v. Northwestern Mut. Fire Ass'n

• Decision Date: 10 December 1907
• Court: Washington Supreme Court
• Parties: DAVIS et al. v. NORTHWESTERN MUT. FIRE ASS'N.

92 P. 881

48 Wash. 50

DAVIS et al. v. NORTHWESTERN MUT. FIRE ASS'N.

Supreme Court of Washington

December 10, 1907

Appeal from Superior Court, King County; R. B. Albertson, Judge.

Action by J. Ernest Davis and another against the Northwestern Mutual Fire Association. Judgment for plaintiffs, and defendant appeals. Reversed and case ordered dismissed.

Shank &amp Smith, for appellant.

Blaine Tucker & Hyland, for respondents.

MOUNT J.

This action was brought by respondents to recover a loss upon a fire insurance policy issued by the appellant. The complaint alleges that on August 18, 1905, a policy of fire insurance was issued by appellant to the respondents, insuring a barn and contents against loss by fire for a period of 90 days; that the amount of insurance upon the barn was $1,000 and upon the contents $1,700; that on September 30 1905, the barn and contents burned, and were a total loss and that the reasonable value thereof was $5,440. The complaint further alleged that on February 8, 1906, proofs of loss were made. These proofs of loss were made a little more than four months after the fire occurred. No excuse for the delay is set out in the complaint. The complaint contains a copy of the policy, which provides that proofs of loss must be made to the company 'within sixty days after the fire unless such time is extended in writing by this company'; and, also, 'no suit or action on this policy for the recovery of any claim shall be sustainable in any court of law or equity until after full compliance by the assured with all the foregoing agreement or unless commenced within twelve months next after the fire.' The appellant by answer put in issue certain material allegations of the complaint, and alleged two affirmative defenses: First, that in the written application made by respondents for the insurance they certified that the cost of the barn was $2,200, and that the cash value thereof at that time was $1,600, that appellant relied upon these statements when it issued the policy, and that in truth and in fact the cost of the barn did not exceed $1,000, and the value thereof at the time of the application did not exceed that sum, and but for these false representations the policy would not have been issued; second, that in making proofs of loss the respondents falsely made oath that the value of the barn at the time of the fire was $2,000, and that this oath was made with intent to deceive and defraud the appellant. These allegations of the affirmative defenses were put in issue by reply. When the cause came on for trial, the defendant demurred to the complaint upon the ground that it did not state facts sufficient to constitute a cause of action. This demurrer was overruled. After the jury had been impaneled, objection was made to the introduction of evidence upon the same ground. Again, at the close of respondents' case and also after all the evidence had been submitted on both sides, motions were made by appellant for nonsuit, upon the ground that no proofs of loss were made within 60 days and no waiver or excuse proven therefor. All the objections and motions were denied by the court. The trial resulted in verdict and judgment in favor of the respondents for $2,150. The appeal is prosecuted from that judgment.

Several errors are assigned, but our conclusion upon the question of the failure to file proofs of loss within the time designated by the policy obviates the necessity of noticing other points. This question was presented to this court and decided in the case of Davis v. Pioneer Mutual Ins Ass'n, 87 P. 829. We there said: 'The provision as to time fixed by the policy was a reasonable one, and should have been met by appellant, unless he showed circumstances which in reason should have excused the delay. All the circumstances show that the delay was due to his willful refusal to comply with the policy requirements, and with the respondent's demand. The policy provides that no suit shall be maintained thereon until the insured has complied with its requirements. It therefore became a condition precedent to maintaining the suit that the kind of proof called for should be made, and should be made within 60 days, unless the time should be extended in writing by respondent, which was not done and was not requested. Appellant failed in both particulars, and he should not now be permitted to maintan his suit in plain violation of the terms of his policy.' The case of Davis v. Insurance Ass'n, supra, was not decided when this case was on trial in the court below. Respondents upon this appeal seek to distinguish the Davis Case from this one because the insured in that case was formerly an insurance agent, while in this case the insured were farmers. We there said: 'A different question might arise if an ordinary layman, unacquainted with insurance methods, and who had in some manner been misled by the insurer, were seeking relief.' It is true that the insured in this case were farmers. But this fact alone is not sufficient to base a distinction upon. There is nothing in the record or evidence before us even tending to show that the respondents were misled in any way. On the other hand, one of the respondents testified that he went to the principal office of appellant in Seattle on October 16 or 18, 1905, which was the month succeeding the fire, and was then told by an officer of the company: 'I am not in a position. I will not...