Murray v. Firemen's Ins. Co. of Newark, N.J.

• Decision Date: 29 March 1927
• Citation: 254 P. 817,121 Or. 165
• Parties: MURRAY v. FIREMEN'S INS. CO. OF NEWARK, N. J.
• Court: Oregon Supreme Court

254 P. 817

121 Or. 165

MURRAY v. FIREMEN'S INS. CO. OF NEWARK, N. J.

Supreme Court of Oregon

March 29, 1927

Department 1.

Appeal from Circuit Court, Multnomah County; Robert Tucker, Judge.

Action by M. Murray against the Firemen's Insurance Company of Newark, N. J., a corporation. From a judgment for plaintiff defendant appeals. Affirmed.

This appeal is from a judgment in favor of plaintiff for $2,000 on a fire insurance policy, $400 attorney's fee, and costs and disbursements. The complaint is in the usual form, with additional allegations by way of estoppel on account of the policy having been drawn in favor of M. Murray & Co. instead of M. Murray. The policy covered the household goods of the plaintiff. The answer puts in issue substantially all the material allegations of the complaint, and as a further and separate defense alleges false representations on the part of the plaintiff regarding the kind and value of the goods destroyed by fire. In his proof of loss plaintiff submitted a schedule showing a value of $4,415, and thereafterwards submitted a further statement showing a valuation of $3,500 for the goods destroyed and lost by the fire. Defendant alleges that the goods lost in the fire did not exceed in value $750, and because of sad alleged false representations defendant denies its liability in any sum. The reply puts in issue the affirmative allegations in the answer. Defendant appeals from the judgment based upon a verdict in favor of the plaintiff and assigns seven errors. The errors assigned may be reduced to two, namely: Admission in evidence of a lace cover and lace tablecloth, and the giving of an instruction permitting the plaintiff to recover an attorney's fee in case the jury found in favor of the plaintiff.

J. C Veazie, of Portland (Veazie & Veazie, of Portland, on the brief), for appellant.

A. M Dibble, of Portland (Malarkey, Seabrook & Dibble, of Portland, on the brief), for respondent.

COSHOW, J. (after stating the facts as above).

The principal error relied upon by defendant is the admission in evidence of a lace cover and lace tablecloth. These articles were made in Syria, where the wife of the plaintiff was born. The two articles introduced over the objection of defendant belonged to the mother-in-law of plaintiff. The wife of plaintiff testified as a witness that the two articles, the cover and tablecloth belonging to her mother, were duplicates of the two articles owned by plaintiff and destroyed by the fire. The two articles so destroyed were given to plaintiff's wife by her mother. Upon that showing, and for the purpose of better describing the articles and determining their value, the plaintiff was permitted over the objection of the defendant to exhibit the articles to the jury. The two articles were admissible for the purpose for which they were offered. It must be remembered that defendant contested the value of the goods destroyed by fire. These two particular articles were not such common or ordinary articles as could be found generally in the stores in this country. They were rare and difficult to describe. The testimony was to the effect that the two articles so exhibited were exactly like the two destroyed. The rule in such cases is stated thus:

"In any case where the nature and properties of an article requires consideration by the jury, it is proper to submit a duplicate or facsimile conveying a correct impression." 22 C.J. 768, § 868. Jones on Evidence (3d Ed.) §§ 393 and 399, notes 27 and 28; Ahearn v. United States (C. C. A.) 158 F. 606; Bloch v. American Ins Co., 132 Wis. 150, 112 N.W. 45; Gilbourne v. Oregon Short Line R. Co., 39 Utah, 80, 114 P. 532; Friedman v. Breslin, 51 A.D. 268, 65 N.Y.S. 5; Commonwealth v. Miller, 258 Pa. 226, 101 A. 1006; Berney v. Dinsmore et al., 141 Mass. 42, 5 N.E. 273, 55 Am. Rep. 445.

The court instructed the jury regarding the purpose for which the articles were introduced and directed the jury to limit consideration of the articles to that purpose. We must assume that the jury was composed of intelligent persons. We do not believe there was any misapprehension on the part of the jury from the introduction of those articles. The evidence disclosed that the two similar articles owned by the plaintiff were destroyed by fire. The production of the two articles introduced could not tend to prove the destruction of the other two. Inspection of the articles might help to enable the jury to determine the value of the articles burnt.

The other assigned error to be noticed is regarding attorney's fee. This action was commenced less than eight months after presenting proof of the loss. The complaint contains these allegations:

"More than sixty days have elapsed since the receipt by said defendant of said proof of loss, and said defendant has refused and still refuses and neglects to pay to said plaintiff any part of said amount due and owing under said policy.

"Five hundred ($500.00) dollars is a reasonable sum to be allowed by the court as and for attorney's fees for the prosecution of this action."

Plaintiff's right to recover any attorney's fee is statutory. Before plaintiff is entitled to recover attorney's fee, he must bring himself within the terms of the statute. At the time the action was tried, more than eight months had elapsed since proof of loss had been made. At the time of the trial plaintiff was entitled to recover a reasonable attorney's fee, in case he was entitled to recover from the defendant. The defendant made no move to strike out the allegation regarding attorney's fee, nor did it demur thereto. It answered by denying that any sum in excess of $200 was a reasonable attorney's fee. The right to recover attorney's fee in this case matured after the commencement of the action. The claim for attorney's fee should have been brought in by a supplemental complaint. Walker v. Fireman's Fund Ins. Co., 114 Or. 545, 573, 234 P. 542. The section of the statute authorizing recovery of fee, so far as relevant here, is as follows:

"Whenever any suit or action is brought in any courts of this state upon any policy of insurance of any kind or nature whatsoever, the

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