McKay v. General Acc., Fire & Life Assur. Corp., Ltd., of Perth, Scotland, 22100.
| Decision Date | 15 August 1930 |
| Docket Number | 22100. |
| Court | Washington Supreme Court |
| Parties | McKAY et al. v. GENERAL ACCIDENT, FIRE & LIFE ASSURANCE CORPORATION, LIMITED, OF PERTH, SCOTLAND. |
Department 1.
Appeal from Superior Court, Grays Harbor County; William E Campbell, Judge.
Action by T. H. McKay, trustee in bankruptcy of the Reiner Jewelry Company, Inc., and others, bankrupts, against the General Accident, Fire & Life Assurance Corporation, Limited, of Perth, Scotland. From a judgment dismissing the action plaintiff appeals.
Reversed with directions.
Martin F. Smith, of Hoquiam, and T. H. McKay, of Aberdeen, for appellant.
Theodore B. Bruener and Thomas S. Grant, both of Aberdeen, for respondent.
Appellant by this action, seeks recovery upon a policy of burglary insurance issued under date of June 21, 1926, to Edward M. Reiner. The case was tried to the court sitting without a jury, resulting in a judgment dismissing the action. The plaintiff has appealed.
The judgment appealed from is based upon findings of fact made by the trial court, and respondent now moves to strike the statement of facts for want of sufficient exceptions to the findings. From the transcript it appears that both parties presented to the trial court their proposed findings of fact, and on the same day and as one transaction the court signed the findings proposed by the respondent and refused the findings proposed by the appellant. In an attempt, apparently, to comply with the statute, Rem. Comp. Stat. § 383, the court indorsed upon the findings proposed by the appellant the following:
While the statement of facts does not purport to cover what took place at the time the findings were signed, the form of indorsement made by the court indicates clearly that oral exceptions were then taken to each finding as made by the court as well as to the failure to make each finding proposed by the appellant, and the court and opposing counsel were fully informed as to each particular fact or issue of fact for which appellant was contending. To hold the exceptions insufficient, under these circumstances and conditions, would be too harsh a ruling, and might result in injustice. We think, under the rule approved in Hill Syrup Co. v. Marine National Bank, 128 Wash. 509, 223 P. 595, and the cases there cited, that the motion to strike must be and it is denied.
The policy sued upon by its terms covers all of the property of the insured kept in a certain described safe located in a particular store then conducted by the insured. Some months after the issuance of the policy the business was incorporated under the name of Reiner Jewelry Company, Inc. and Reiner then drew and delivered to the corporation a bill of sale which, by its terms, describes 'all of the stock of merchandise consisting of watches, diamonds, jewelry, sporting goods,' etc., as well as the store fixtures, lease, and good will of the business theretofore carried on by him. The testimony rather clearly and without dispute shows that in addition to the mounted diamonds, constituting a part of the regular stock in trade, Reiner had for some years dealt in loose or unmounted diamonds and that at the time of the transfer to the corporation he retained and kept the loose diamonds which he then had on hand and afterwards continued as an individual to so deal in unmounted diamonds, keeping them at all times in an inner compartment of the safe to which no one save himself had access and that at the time of the burglary he had in the safe loose diamonds of the value of upwards of $5,000. Not only Reiner, but apparently all of...
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