O'Toole v. Phoenix Ins. Co.

• Decision Date: 05 September 1905
• Citation: 39 Wash. 688,82 P. 175
• Court: Washington Supreme Court
• Parties: O'TOOLE v. PHOENIX INS. CO. OF HARTFORD, CONN.

82 P. 175

39 Wash. 688

O'TOOLE v. PHOENIX INS. CO. OF HARTFORD, CONN.

Supreme Court of Washington

September 5, 1905

Appeal from Superior Court, Thurston County; O. V. Linn, Judge.

Action by John O'Toole against the Phoenix Insurance Company of Hartford, Conn. From an order refusing to vacate a judgment for plaintiff, defendant appeals. Reversed.

Fullerton J., dissenting.

H. T. Granger, for appellant.

Israel & Mackay and Troy & Falknor, for respondent.

CROW J.

This appeal is prosecuted to reverse the action of the superior court of Thurston county in refusing to vacate and set aside a judgment entered upon the verdict of a jury, after trial had in the absence of appellant and its counsel. The grounds upon which relief was sought were mistake, inadvertence, and surprise.

The record shows the following facts which are undisputed, and which are urged by appellant in support of its motion: This action was instituted by respondent, John O'Toole against the Phoenix Insurance Company of Hartford, Conn appellant, upon certain fire insurance policies, to recover for losses sustained. The issues of fact being fully formed the case was set down for trial on June 16, 1904. On June 6th, in a conversation with H. T. Granger, sole attorney for appellant, Mr. Israel, of Israel & Mackay, residing in Olympia, and counsel for respondent, stated that Mr. Granger who resided in Seattle, need not come to Olympia to attend the trial until he received word from Mr. Israel, who would telephone him in ample time to enable him to be present. Mr. Granger at said time had a case set for trial in Spokane for June 9th. The Spokane case being postponed until June 13th, Mr. Granger on June 12th telephoned to Mr. Israel at Olympia that he had trial at Spokane commencing June 13th, that he was uncertain as to how long it would continue, but that as soon as it was completed, he would go to Olympia to try this action. The Spokane trial was finished on June 15th, and on that date Mr. Granger telegraphed Messrs. Israel & Mackay from Spokane as follows: 'Spokane, Wash. June 15, 1904. Israel & Mackay, Olympia, Wash. Can leave here tonight. What is situation? Answer care of Hotel Victoria. H. T. Granger.' Mr. Israel being absent from his office, his partner, Mr. Mackay, immediately replied by wire as follows: 'Olympia, Wash. June 15, 1904. H. T. Granger, Hotel Victoria, Spokane, Wash. Impossible to reach your case this week. Have written. Israel & Mackay.' Israel & Mackay did not write, but, instead, wired again as hereinafter stated. On the morning of June 16th Mr. Israel called the court's attention to this case, the trial being delayed by reason of the congested condition of the calendar, and a resetting was definitely made for June 21st. Thereupon, instead of writing, Israel & Mackay wired Mr. Granger at Spokane, as follows: 'Olympia, Wash. June 16, 1904. H. T. Granger, Hotel Victoria, Spokane, Wash. O'Toole case assigned for next Tuesday morning, 21st instant. Israel & Mackay.' Mr. Granger having left Spokane, this telegram did not reach him until after judgment had been entered herein. He had returned to Seattle, where on Thursday, Friday, and Saturday, the 16th, 17th, and 18th of June, he held himself and a witness in constant readiness to go at once to Olympia on receiving word from Mr. Israel. Having ordered his mail forwarded from Spokane, he also expected the letter mentioned in the Israel & Mackay telegram of the 15th. On Monday morning, June 20th, having received no word either by letter or telephone, he caused his clerk to mail at Seattle, the following letter in time for the same to reach Olympia that day: 'June 20, 1904. Messrs, Israel & Mackay, Olympia, Wash.--Gentlemen: Your telegram was received by me at Spokane last Wednesday, saying you had written. I have received no letter, therefore suppose you have been busy trying other cases. I wish you would wire me tomorrow at my expense what the probabilities are about reaching our case. I have been holding myself in readiness to come at any time in response to a notice from you ever since last Thursday. Yours truly, H. T. Granger.' This letter, which was mailed in a return envelope, is not shown to have ever reached respondent's attorneys, who...