Lauridsen v. Bowden, Gazzam & Arnold

• Decision Date: 31 May 1919
• Docket Number: 14809.
• Citation: 181 P. 885,107 Wash. 310
• Court: Washington Supreme Court
• Parties: LAURIDSEN v. BOWDEN, GAZZAM & ARNOLD.

181 P. 885

107 Wash. 310

LAURIDSEN v. BOWDEN, GAZZAM & ARNOLD.

No. 14809.

Supreme Court of Washington, En Banc.

May 31, 1919

Appeal from Superior Court, Clallam County; Guy C. Alston, Judge.

Action by G. M. Lauridsen against Bowden, Gazzam & Arnold. Verdict and judgment for plaintiff, and defendant appeals. Reversed and remanded, with instructions to dismiss the action.

Main Holcomb, and Tolman, JJ., dissenting.

Bogle, Graves, Merritt & Bogle, of Seattle, for appellant.

T. F Trumbull and Rose & Lewis, all of Port Angeles, for respondent.

MITCHELL, J.

Respondent brought this action to recover damages for an alleged breach of contract to procure marine insurance upon a cargo of canned salmon to be shipped from Clallam county to Seattle in November, 1915. At the close of respondent's proof appellant challenged the sufficiency of the evidence, and moved the court for a judgment of nonsuit. Again at the close of all the evidence appellant moved the court to direct the jury to return a verdict for appellant and against the respondent on the ground that the evidence failed to show any right of recovery on the part of respondent. And again after the verdict and at the proper time appellant made and filed a written motion for judgment non obstante veredicto. Each of the motions was denied and an exception taken. The jury returned a verdict in the sum of $2,500 for respondent, and from a judgment entered thereon this appeal has been taken.

After the verdict had been received in the trial court, and after appellant had filed a motion for a new trial, it then in writing waived its motion for a new trial, but insisted upon its motion for a judgment non obstante veredicto. Respondent now objects to the consideration by this court of appellant's assignments of errors, it being contended that the waiver of the motion for a new trial carried with it and condoned whatever errors, if any, might have been properly considered under the motion for a new trial. Whatever may have been the rule in this respect at common law and according to the early decisions in this state, under the present practice statutes and the later decisions of this court the rule is otherwise. In the case of Dyer v. Middle Kittitas Irrigation District, 40 Wash. 238, 82 P. 301, a verdict was rendered for the defendant; plaintiff made a motion for a judgment notwithstanding the verdict and for a new trial. Before the motions were passed upon, the motion for a new trial was withdrawn by the plaintiff, and plaintiff's rights were submitted upon the other motion. It was overruled, and judgment was entered on the verdict. This court considered the sufficiency of the evidence to sustain the judgment, and reversed the case ordering a judgment for the plaintiff. Again, in the case of Forsyth v. Dow, 81 Wash. 137, 139, 142 P. 490, 491 this court said:

'A motion for a judgment non obstante veredicto is a creature of the common law. It is now entertained only in so far as it has been defined and assigned a particular function in our Code of Procedure. * * * Nor does the statute make the motion in any way dependent upon or concurrent with a motion for a new trial.'

Other cases to the same effect are Birch v. Abercrombie, 74 Wash. 486, 133 P. 1020, 50 L. R. A. (N. S.) 59, and Mattson v. Griffin Transfer Co., 90 Wash. 1, 155 P. 392.

The case was tried upon a second amended complaint. In the original complaint, appellant, the Pacific Marine Insurance Company, a corporation, and Davis & Woods, a copartnership, were all made defendants and served with summons and complaint. The complaint alleged, inter alia, that Davis & Woods acted in the transaction as agents for appellant and the Pacific Marine Insurance Company, and recovery was sought for loss on a policy of insurance that Davis & Woods represented was or would be issued because of the receipt by them of the premium paid for the policy prior to the loss. The amended complaint was served and filed, continuing the case against all three defendants. A separate demurrer of the Pacific Marine Insurance Company to the complaint having been sustained, the case was dismissed upon motion of the plaintiff as to the insurance company and also as to Davis & Woods. In the second amended complaint the plaintiff sued, not on an alleged breach of contract of insurance, but on an alleged breach of contract to procure insurance.

The probative facts in the case are undisputed. Respondent was a resident of and doing business in Clallam county; J. M. Davis and P.J. Woods resided in Port Angeles, Wash., and were engaged in business as copartners in the name of Davis & Woods; and appellant was and is a corporation of this state having its office and place of business in Seattle, and engaged, under its articles of incorporation, in the insurance business only as agent and broker for fire, marine, and liability insurance companies. Appellant, as agent, represented, among other companies, the Pacific Marine Insurance Company, a foreign insurance company which wrote marine insurance in this state as an 'unauthorized company' under section 75 of the insurance Code of the state. Davis & Woods had no license from the state insurance commissioner to solicit insurance for the appellant or the Pacific Marine Insurance Company.

Respondent, intending to send two gas boats with cargoes of canned salmon from his cannery near the mouth of the Quillayute river in Clallam county to Seattle, was solicited on November 20th by Mr. Davis, of the firm of Davis & Woods, to give them the application for the marine insurance on the cargoes. Davis told respondent he was the representative of the Pacific Marine Insurance Company, through Bowden, Gazzam & Arnold, of Seattle, and, not being posted as to rates, he would write and find out what they were. Thinking there was insufficient time to attend to it by mail, Davis agreed to telegraph appellant. That afternoon (Saturday) Davis sent a telegram as follows:

'Port Angeles, Wash., Nov. 20, 1915.

'Bowden, Gazzam & Arnold, N.Y. Blk., Seattle, Wn. Write us best marine rate cargo salmon ex boats Albert and Rhododendron owned by Capt. Albert Johnson, this city, from cannery mouth Quillayute river, Clallam county to Seattle.

Davis & Woods.'

Appellant's office was closed on Saturday afternoon, and the telegram was not delivered to it until Monday, November 22d, which was the first appellant heard of the transaction. Davis' statement to respondent on November 20th that his firm was agent of appellant was unauthorized. On Monday Mr. Arnold, secretary of appellant, replied to the telegram he had just received as follows:

'Seattle, Wn., 11:59 a. m., Nov. 22.

'Davis & Woods, Port Angeles, Wn. Rate salmon thirty cents gasoline boats ten cents regular steamers see letter today.

'Bowden, Gazzam & Arnold.'

On the same day, after sending the telegram, a letter was written and mailed from appellant's office as follows:

'Seattle, Wash., Nov. 22, 1915.

'Messrs. Davis & Woods, Port Angeles, Wash.

--Gentlement: Your wire of the 20th was not received until this morning owing to the fact that we always close the office on Saturdays at 1 p. m., and we therefore wired you this morning as follows: 'Rate salmon thirty cents gasoline boats ten cents regular steamers, see letter to-day.'

'The rate on cargo salmon from cannery at mouth of Quillayute river, Clallam county, to Seattle, if by regular steamers is but 10 cents per $100, while if shipped by gasoline boats the rate is thirty cents per $100, and we trust these rates will enable you to secure the business.

'The above rates quoted are for cargo under deck and are always twice as much when loaded on deck.

'Thanking you for this inquiry, and hoping to receive your order for the insurance, we remain, yours very truly,

'Bowden, Gazzam & Arnold,

'W. W. Turner,

'Manager Marine Insurance Dept.'- On November 22d, upon receipt of the telegram of that date from appellant, Davis informed respondent of the rates. Respondent testified he then told Davis 'to write a policy, and he (Davis) explained they did not issue a policy on marine insurance like they do on fire, they would give me what he called a slip or receipt for the money--a memorandum or something of that kind.'

On or about November 24th, Davis & Woods wrote to appellant as follows:

'Port Angeles, Wash.

'Bowden, Gazzam & Arnold, Seattle, Wn.--Dear Sirs: Refer your letter 22d inst. Shall we issue applicant a slip and contract such as you mailed us in June last, per inclosed blanks; if so, kindly mail blanks and when we are advised as to cargo we will issue slip to assured and mail copy to you.

'Kindly advise us in this matter that there is no hitch.

'Yours truly,

Davis & Woods,

'Per J. M. Davis.'

On November 27th, appellant's office in Seattle wrote and mailed to Davis & Woods a letter as follows:

'Seattle, Wash., Nov. 27, 1915.

'Messrs. Davis & Woods, Port Angeles, Wash.

--Gentlemen: Replying to your letter of the 24th inst., have to state that if this order is for a single shipment it will not be necessary for you to issue an open policy contract with the assured. If you will advise us the name of the shipper, amount of shipment, nature of cargo, boat that it is shipped on, to and from what port and the date of sailing we will protect the shipment for you and return one of our policies covering on the same.

'In our letter of June 5th, we sent you open policy for your own use, made out in triplicate. These were to have been signed by your firm and all returned to this office for the policy itself to be made out. Kindly do this now, and we will then be able to complete the transaction.

'We have another agent up sound that has taken care of several salmon shipments and we have issued policies from this office, on such

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