4 Wash. 375 | Wash. | 1892
Lead Opinion
The opinion of the court was delivered by
— The notice to settle the statement of facts on appeal in this cause failed to name any place where such statement would be presented for settlement, and named a judge who did not try the case as the person before whom such settlement would be had. This being so, we are of the opinion that it was ineffectual for the purpose for which it was given, and that the motion of the respondent to strike the statement for that reason must be granted.
The facts being out of the case, only one question is presented for our determination. Does the complaint state facts sufficient to constitute a cause of action? The action was brought upon a policy of insurance which was attached to the complaint. Under the provisions of said policy the company agreed to pay a sum not exceeding one thousand dollars, subject to the provisions contained in said policy, that the amount to be paid thereunder should not exceed the proportion which the amount insured under the policy bore to all the insurance. The complaint contained allegations which are conceded to be sufficient, with the exception that it contained no allegation, that there was no other insurance upon the property, or that there was other insurance, giving the amount thereof. The contention of appellant is, that one of these last named allegations was absolutely necessary to deter
The judgment must be affirmed.
Anders, G. J., and Stiles and Scott, JJ., concur.
Concurrence Opinion
(concurring). — I concur in the result announced by the majority, but not for the reasons assigned in the opinion. I think the complaint states a good cause of action, and that it is proof against demurrer, or any other objection. It is not necessary for the complaint to allege what other insurance, if any, there was on the property at the time of the loss. The basis of computation is
“The special matter must be set forth with such certainty and particularity, as that the plea, on its face, prima facie, constitutes a defense, and the insurer can only defend as to the matter set up, and the fact that evidence was admitted without objection, not warranted by the pleadings, will not defeat the plaintiff’s claim. The plaintiff is entitled to have all such evidence stricken out of the case.”
If the law will even exclude testimony admitted without objection, on the theory that the plaintiff need not negative facts of this character until the defendant by his pleadings has tendered an issue thereon, how much stronger is the reason for sustaining a complaint which does not state these negative facts. The contract in this case is substantially a contract to pay one thousand dollars, notwithstanding some subsequent act of the insured might lessen the liability of the defendant. It is evident from the policy that it would be a subsequent act which is complained of, and the distinction must be kept in mind between facts precedent and facts subsequent. The rule is thus laid down in 2 May on Insurance, § 589:
“As in cases of insurance the money is only recoverable on the performance of certain acts by the insured and the existence of certain facts, the performance of these acts and the existence of these facts must be alleged. But this applies only to conditions and facts precedent. Conditions subsequent to the right of recovery, and all acts to be done by the insurers in discharge of their liability, may be omitted from the declaration, and left for the insurers to set up in defense.”
“It can readily be determined of what matters performance should be averred, by ascertaining what, under the policy, the assured has stipulated to do, and what he must do, in order to recover, and he must aver performance of all such conditions, as where he stipulates to erect a chimney, to keep a watchman, etc. . . . But, as to all other matters, which are in the nature of exceptions, or which are merely prohibitory, and provide that the assured shall not do certain things, the plaintiff need not make any special averments, as they are merely matters of defense, which, if relied upon by the insurer, must be plead and proved by him.”
And this is only in accordance with the general rule of pleading, that it is necessary for each party to make out his own case or defense. The plaintiff is not bound to antici