Miller v. Commercial Union Assur. Co.

• Citation: 69 Wash. 529,125 P. 782
• Parties: MILLER v. COMMERCIAL UNION ASSUR. CO., Limited.
• Decision Date: 19 August 1912
• Court: United States State Supreme Court of Washington

125 P. 782

69 Wash. 529

MILLER v. COMMERCIAL UNION ASSUR. CO., Limited.

Supreme Court of Washington

August 19, 1912

Department 1. Appeal from Superior Court, Spokane County; J. D. Hinkle Judge.

Action by William Miller against the Commercial Union Assurance Company, Limited. Judgment for plaintiff, and defendant appeals. Reversed and remanded, with directions.

Post Avery & Higgins, for appellant.

Curtiss & Remele, of Spokane, for respondent.

CROW J.

This action was commenced by William Miller against Commercial Union Assurance Company, Limited, a corporation, to recover upon a fire insurance policy issued on an automobile owned by the plaintiff. The trial judge made findings upon which judgment in plaintiff's favor was entered. The defendant has appealed.

The policy was issued on June 25, 1910, and the automobile was destroyed by fire on July 5, 1910. Respondent made a written application, material portions of which read as follows: 'To Commercial Union Assurance Company Limited. * * * Insurance is wanted by Wm. Miller for the term of one year from June 25, 1910, at noon, until June 25, 1911 at noon, for the sum of $2,000 upon the body, machinery and equipment of the automobile hereinafter described, which description is hereby made a warranty by the applicant. * * * Particulars and description of automobile: * * * Original cost to applicant, including equipment, $4,300. Present value of automobile $2,600. * * * State whether automobile was new or secondhand when purchased by applicant. New. If secondhand, state when purchased and give name and address of party from whom purchased. * * * State whether the automobile is fully paid for. Yes. State whether it is mortgaged or incumbered. No. * * * Dated at Spokane, Wash., 6/25, 1910. Wm. Miller, Applicant.' Indorsed on the application, under the heading 'Conditions of Policy,' was the following stipulation, which was also contained in the policy: 'This entire policy shall be void if the insured has concealed or misrepresented, in writing or otherwise, any material fact or circumstance concerning this insurance or the subject thereof, or if the interest of the insured in the automobile be not truly stated herein; or in case of any fraud or false swearing by the insured touching any matter relating to this insurance or the subject thereof, whether before or after loss.' The policy recited that: 'Commercial Union Assurance Company, Limited, of London, England. In consideration of fifty and no/100 dollars, to it agreed to be paid by the insured hereinafter named, and of the statements made in the application for this insurance, which is hereby made a warranty and a part of this policy, does insure Wm. Miller, for the term of one year from the twenty-fifth day of June, 1910, at noon, to the twenty-fifth day of June, 1911, at noon, against loss or damage to the automobile hereinafter described, its body, machinery and equipment, while attached to and forming a part of said automobile. To an amount not exceeding two thousand and no/100 dollars. * * *'

Respondent pleaded the issuance of the policy, payment of the premium, the destruction of the automobile by fire, respondent's compliance with all terms and conditions of the policy, and appellant's refusal to pay. In its answer appellant alleged that the statements of the application became and were a part of the policy; that they were untrue, in that the automobile was not new when purchased by respondent; that he was not its owner when the application was made; and that it was not free from incumbrance, all of which was unknown to appellant but was known to respondent. For a counterclaim and cross-complaint the appellant pleaded the issuance of the policy; that the premium had not been paid, and asked judgment therefor. In his reply respondent admitted that he made the written application, that its statements became and were a part of the policy, and that the automobile was not new when purchased by him; but alleged that appellant inspected the machine and knew its condition; that respondent's statements were not material to the risk; that appellant was not deceived; and that, although respondent at the time of making the application owed his vendor $150 on purchase price, the machine had then been delivered to respondent, and no lien existed thereon. Replying to the cross-complaint, respondent admitted that he was indebted to appellant for the premium, and alleged that, at the time of the preparation of the complaint which was verified by one of his attorneys, he was not within the state of Washington, and that his attorneys by mistake alleged the premium had been paid. After the issues were completed, appellant moved for judgment on the pleadings for the premium and costs. Respondent filed an offer to confess the motion, provided the premium should be applied in reduction of his claim. Thereupon appellant moved the court for an order permitting it to amend its motion for judgment to read as follows: 'Comes now the defendant in the above-entitled cause and moves the court for an order for a judgment on the pleadings that plaintiff take nothing herein and that defendant have judgment for its costs.' Upon hearing, all of the motions were denied by Hon. E. H. Sullivan, one of the judges of the superior court. Thereafter the action was called for trial, without a jury, before Hon. J. D. Hinkle, another judge of the same court. Before any other proceedings were had, appellant's attorney made the following statement and request: 'There is a thing in this case that your honor probably is not in a position to appreciate at this time. In all these pleadings you will observe that Mr. Curtiss [counsel for respondent] consents that we take judgment for judgment on the and we made a motion for judgment on the pleadings. That was before Judge Sullivan. During that argument we made a subsequent motion asking that the case be dismissed, although asking for the $40. That is a matter of record here. Judge Sullivan, on account of the arguments that were made, probably took the view, or expressed himself at the time when that second motion was called to his attention, that that amended the counterclaim to be in the alternative. Now, if there is any doubt in your honor's mind about that--I have been acting on Judge Sullivan's opinion--if your honor has any doubt about that, I will make a motion dismissing that counterclaim. * * * In our cross-complaint we ask for $40 due on the policy. We want the case dismissed, or else we want the $40. In other words, we cannot claim there is $40 due us, and at the same time say the policy is void.' Upon objection of respondent's counsel, this request to dismiss the counterclaim was denied, and the trial proceeded upon the pleadings as drawn. The trial judge found the amount of respondent's loss, deducted the premium therefrom, and entered judgment for the remainder.

Appellant contends that the policy was void by reason of the untruthful statements of respondent's application, that the statements were warranties which became a part of the policy and that the trial court erred in not...