Mountain Timber Co. v. Manufacturing Wood Workers Underwriters

• Decision Date: 29 August 1917
• Docket Number: 13881.
• Court: Washington Supreme Court
• Parties: MOUNTAIN TIMBER CO. v. MANUFACTURING WOOD WORKERS UNDERWRITERS.

167 P. 93

98 Wash. 167

MOUNTAIN TIMBER CO. v. MANUFACTURING WOOD WORKERS UNDERWRITERS.

No. 13881.

Supreme Court of Washington

August 29, 1917

Department 2. Appeal from Superior Court, Cowlitz County; William T Darch, Judge.

Action by the Mountain Timber Company against the Manufacturing Wood Workers Underwriters and others. Judgment for plaintiff, and defendant named appeals. Affirmed.

H. T. Granger, of Seattle, for appellant.

Edmund C. Strode, of Lincoln, Neb., Coy Burnett, of Portland, Or and A. H. Imus, of Kalama, for respondent.

PARKER J.

The plaintiff Mountain Timber Company seeks recovery upon a fire insurance policy issued to it by the defendant Manufacturing Wood Workers Underwriters, an unincorporated mutual insurance association. The action was commenced and prosecuted in the superior court against the association in name, Lee Blakemore, Incorporated, as attorney in fact for the association, and two of the members of the association. The action was prosecuted upon the theory that it was one in equity. The object of the plaintiff was to have judicially determined the total amount due upon the policy, to subject funds of the association in the hands of its attorney in fact to the payment thereof, and recover judgment against those members of the association who are made parties to the action. The association appeared generally in name and answered to the merits, as did also the other defendants. Trial in the superior court upon the merits resulted in findings and the awarding of recovery of the amount found due upon the policy, in the form of an ordinary money judgment entered against the association in name, leaving undetermined the amount to be contributed towards the payment thereof by the several members of the association. From this judgment the association has appealed to this court. None of the other defendants have appealed.

The principal contention here made in appellant's behalf is that it is not such a legal entity that judgment can be lawfully rendered against it in name because it is an unincorporated association and also because the policy sued upon by its terms limits the right of recovery thereon to actions against its members. No contention is here made upon the merits of respondent's claim, nor are we concerned with any facts other than those which appear in the pleadings; there being no statement of facts before us.

The policy was issued in the name of the association and signed by its attorney in fact. Its only provisions which we consider necessary to be here noticed are the following:

'Manufacturing Wood Workers Underwriters.

'Chicago, Ill.

'In consideration of the stipulations herein named and of the deposit of three hundred thirty-six and 30/100 dollars premium, does insure Mountain Timber Company for the term of one year from the 20th day of June, 1914, at noon, to the 20th day of June, 1915, at noon, against all direct loss or damage by fire, except as hereinafter provided, to an amount not exceeding fifteen thousand dollars to the following described property. * * * In the event of litigation herein to avoid a multiplicity of suits, no suit or other proceedings at law or in equity shall in any event be begun or maintained for the recovery of any claim upon, under or by virtue of this policy against more than one of the underwriters hereon at any time, nor in any court other than the highest court of original jurisdiction; and that a final decision in such suit, or other proceedings, shall be taken to be decisive of the similar claim, so far as the same may subsist, against each of the other underwriters hereon, absolutely fixing his liability in the premises, each of the underwriters hereon, in consideration of this entire stipulation, so far as he individually is or may be concerned, expressly agrees to accept and abide by the result of such final decision in the same manner and to the same effect as if he had been sole defendant in a similar suit or proceeding as to the similar claim against him, so far as the same may subsist, save and except, however,

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