Downs Farmers' Warehouse Ass'n v. Pioneer Mut. Ins. Ass'n

• Decision Date: 05 January 1906
• Citation: 83 P. 423,41 Wash. 372
• Court: Washington Supreme Court
• Parties: DOWNS FARMERS' WAREHOUSE ASS'N v. PIONEER MUT. INS. ASS'N.

83 P. 423

41 Wash. 372

DOWNS FARMERS' WAREHOUSE ASS'N v. PIONEER MUT. INS. ASS'N.

Supreme Court of Washington

January 5, 1906

Appeal from Superior Court, Lincoln County; W. O. Chapman, Judge.

Action by the Downs Farmers' Warehouse Association against the Pioneer Mutual Insurance Association. From a judgment in favor of plaintiff, defendant appeals. Reversed.

H. T Granger, for appellant.

Martin & Grant, for respondent.

CROW J.

This action was commenced by the Downs Farmers' Warehouse Association, a corporation, respondent, against the Pioneer Mutual Insurance Association, a corporation, appellant, to recover the sum of $2,000, upon a fire insurance policy issued by appellant upon a certain warehouse and contents on the line of the Great Northern Railway, at Downs, in Lincoln county, which was totally destroyed by fire on June 6, 1904. The complaint was in the usual form for an action upon a fire insurance policy. Appellant, as an affirmative defense alleged that said policy contained the following condition 'If this association shall claim that the fire was caused by the act or neglect of any person or corporation, private or municipal, this association shall, on payment of the loss, be subrogated to the extent of such payment to all right of recovery by the member for the loss resulting therefrom, and such right shall be assigned to this association by the member on receiving such payment.' That subsequent to the issuance of said policy, and prior to the date of said fire, respondent entered into a certain written contract with the Great Northern Railway Company, for a license to enter upon and occupy the premises upon which said warehouse was located, which said contract in part provided as follows: 'In consideration of the premises, said party of the second part does hereby consent and agree to and with the said party of the first part that it will forever protect, save harmless and indemnify said first party from all damages or liability whatsoever which shall or may be during the existence of this agreement, caused by or result from the frightening of horses or other animals of said second party or belonging to any other person while upon said premises, by locomotives or cars, fire, coal or sparks escaping or being scattered from the engines or trains of said first party while being operated on its main spur or side tracks, in hauling empty or loaded cars to and from said premises above described, or from engines on tracks passing said premises on said main or side tracks, and for said consideration said party of the second part does further consent and agree to defend and save harmless said first party from all suits, costs, damages and expenses, which may or shall be brought on account of or result from fire caused by sparks or coal escaping or being scattered from the engines and trains of the first party while operating its main or side tracks to, by or from said premises.' That the party of the first part, in said contract mentioned, was the Great Northern Railway Company, and the party of the second part was respondent. That the fire which caused the destruction of said warehouse was caused by the act of the Great Northern Railway Company by reason of sparks from an engine operated by it falling upon and igniting said building. That in its proof of loss respondent stated, under oath, that said fire was so caused, and that by reason of the contract between respondent and said railway company respondent has been prevented from assigning to appellant any right of action which it might otherwise have against said railway company for damages arising out of said fire, and appellant has been deprived of its right to be subrogated to such right of action. Trial was had before the court and a jury, and upon a verdict in favor of respondent final judgment was entered, from which this appeal has been taken.

Respondent has moved to strike the statement of facts, for the reason that the judge who certified the same was not in Lincoln county, the place of trial, nor in the judicial district of which said county is a part, at the time of making his certificate. In support of this motion respondent cites Prospectors' Development Co. v. Brook, 31 Wash. 187, 71 P. 774, in which it appears that the respondent had proposed amendments to the appellant's proposed statement of facts after it had been filed and served. Here no amendments were proposed, which fact differentiates this case. This cause was tried before Hon. W. O. Chapman, judge of the superior court of Pierce county, as visiting judge in Lincoln county. No amendments having been proposed to appellant's proposed statement of facts, it became the duty of the trial judge to certify said statement, without notice. Ballinger's Ann. Codes & St. § 5058. This being true, it was not necessary for the respondent to be present when such certificate was made, no hearing being contemplated; hence, said statement of facts was properly certified by said visiting judge while in his own county. Section 2, c. 57, Sess. Laws 1901, p. 77. The motion is denied.

After the evidence of appellant and respondent had been introduced appellant challenged its sufficiency and moved the court to direct a verdict in its favor. This motion was denied, and appellant's only assignments of error are that the court erred in denying said challenge and motion, and in refusing a new trial. These assignments of error raise but one question: Was the evidence sufficient to sustain the verdict rendered or to...