McGillicuddy v. New Brunswick Fire Ins. Co.
| Decision Date | 29 August 1923 |
| Docket Number | 17723. |
| Citation | 126 Wash. 201,217 P. 1000 |
| Parties | McGILLICUDDY v. NEW BRUNSWICK FIRE INS. CO. |
| Court | Washington Supreme Court |
Department 2.
Appeal from Superior Court, Lincoln County; Sessions, Judge.
Action by J. J. McGillicuddy against the New Brunswick Fire Insurance Company. From a judgment of dismissal, plaintiff appeals. Reversed and remanded, with directions.
W. H Mason, of Everett, and Merritt, Lantry & Baske, of Spokane for appellant.
E Eugene Davis, of Spokane, for respondent.
Appellant instituted this action against respondent to recover $2,500 upon a fire insurance policy covering certain personal property destroyed by fire.
After evidence was introduced on the part of appellant he rested his case. The respondent submitted the case without evidence and the court directed a verdict for the appellant in the sum of $2,500. Thereafter the trial court granted a motion of respondent for judgment notwithstanding the verdict and dismissed the action, from which judgment of dismissal this appeal is taken.
The principal point in controversy is whether or not the service of proof of loss upon the agent of the company who wrote the policy was a compliance with the policy providing for furnishing proof of loss.
It appears that the trial court relied principally upon the case of Ferdenando v. Milwaukee Mechanics' Ins. Co., 81 Wash. 244, 142 P. 693, wherein the statement was made that:
'The law is well settled that a local agent has no such power where the only authority relied upon is proof of the fact that he solicited the insurance and, having received it, delivered the policy to the insured.'
It appears that an insurance agent may adjust and settle the losses of a company without procuring an adjuster's license. Section 7081, Rem. Comp. Stat., providing for the appointment of an insurance adjuster annually and providing that such insurance adjuster shall procure a license permitting him to adjust losses for authorized insurance companies, provides in part as follows:
'Provided, that an agent for a duly authorized insurance company may adjust and settle losses for the company for which he is licensed agent without procuring an 'adjuster's' license.'
Immediately after the fire, in answer to a telegram from appellant, James H. De Veuve, the agent issuing the policy, sent the following telegram:
'Policies aggregating twenty five hundred on mill five thousand on machinery and tools properly assigned to you October fifteenth and mailed to Mondovi Washington November tenth all in good order please advise when adjuster can accompany you to plant.'
The testimony shows that thereafter the adjuster of the company, a Mr. Webster, in company with Mr. Flagg, an adjuster for appellant, proceeded to investigate and adjust the extent of the loss for both appellant and respondent. Mr. Webster resided in Spokane, and when asked how he knew Mr. Webster appellant answered:
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