48 Wash. 50 | Wash. | 1907
This action was brought by respondents to recover a loss upon a fire insurance policy issued by the appellant. The complaint alleges that on August 18, 1905, a policy of fire insurance Avas issued by appellant to the respondents, insuring a bam and contents against loss by fire
The appellant, by answer, put in issue certain material allegations of the complaint and alleged two affirmative defenses : First, that in the written application made by respondents for the insurance they certified that the cost of the barn was $2,200, and that the cash value thereof at that time was $1,600; that appellant relied upon these statements when it issued the policy; that in truth and in fact the cost of the barn did not exceed $1,000, and the value thereof at the time of the application did not exceed that sum, and but for these false representations the policy would not have been issued. Second, that in making proofs of loss the respondents falsely made oath that the value of the barn at the time of the fire was $2,000; that this oath was made with intent to deceive and defraud the appellant. These allegations of the affirmative defenses were put in issue by reply. When the cause came on for trial, the defendant demurred to the complaint upon the ground that it did not state facts sufficient to constitute a cause of action. This demurrer was overruled. After the jury had been impaneled, objection was made to the introduction of evidence upon the same ground. Again, at the close
Several errors are assigned, but our conclusion upon the question of the failure'to file proofs of loss within the time designated by the policy obviates the necessity of noticing other points. This question was presented to this court and decided in the case of Davis v. Pioneer Mut. Ins. Ass’n, 44 Wash. 532, 87 Pac. 829. We there said:
“The provision as to time fixed by the policy was a reasonable one, and should have been met by appellant, unless he showed circumstances which in reason should have excused the delay. All the circumstances show that the delay was due to his wilful refusal to comply with the policy requirements, and with respondent’s demand. The policy provides that no suit shall be maintained thereon until the insured has complied with its requirements. It therefore became a condition precedent to maintain the suit that the kind of proof called for should be made, and should be made within sixty days unless the time should be extended in writing by respondent, which was not done and was not requested. Appellant failed in both particulars and he should not now be permitted to maintain his suit in plain violation of the terms of his policy.”
The case of Davis v. Pioneer Mut. Ins. Ass’n, supra, was not decided when this case was on trial in.the court below. Respondents upon this appeal seek to distinguish the Davis case from this one because the insured in that case was formerly an insurance agent, while in this case the insured were farmers. We there said:
“A different question might arise if an ordinary layman, unacquainted with insurance methods and who had in some manner been misled by the insurer, were seeking relief.”
Respondents further contend that the rule laid down in Davis v. Pioneer Mut. Ins. Ass’n, supra, is not in accord with the weight of authority upon the subject. We are therefore requested to overrule that case. It is true that the states of Michigan, Wisconsin, Kansas, Kentucky, Florida, Virginia, and possibly other states, have held that where the insured fails to furnish proofs of loss under policies similar to the one in this case within the time specified, he can still recover provided proofs were made before suit is brought, as shown by the following cases: Steele v. German Ins. Co., 93 Mich. 81, 53 N. W. 514, 18 L. R. A. 85; Flatley v. Phoenix Ins. Co., 95 Wis. 618, 70 N. Y. 828; St. Paul Fire etc. Ins. Co. v. Owens, 69 Kan. 602, 77 Pac. 544; Gragg v. Home Ins. Co., 28 Ky. Law 988, 90 S. W. 1045; Hartford Fire Ins. Co. v. Redding, 47 Fla. 228, 37 South. 62, 110 Am. St. 118; Northern Assur. Co. v. Hanna, 60 Neb. 29, 82 N. W. 97; North British etc. Ins. Co. v. Edmundson, 104 Va. 486, 52 S. E. 350.
On the other hand, the states of New York, Ohio, Illinois, Minnesota, Maryland, Indiana, California, Missouri, Arkansas, and possibly other states, and some of the Federal courts,
Respondents request that, if we reverse the judgment on-the ground that the proofs of loss were not filed in time, we give them an opportunity to amend by alleging waiver on the part of appellant. We think the request comes too late at this time, especially in view of the fact that respondents had an opportunity at the trial to prove a waiver if there was one, and submitted no evidence tending in the least to show a waiver, but on the contrary the evidence of the respondents, as hereinbefore stated, shows that there was no waiver, but that the appellant stood upon its strict -rights under the contract, and in view of the further fact that the appellant contended from the beginning at every opportunity, that it was necessary to make the proofs of loss as provided in the policy, and that this was one of the defenses upon Avhich it relied. Respondents therefore had ample notice of appellant’s position. If evidence had been introduced sufficient to go to the jury upon the question of waiver, Ave should now consider the complaint amended in that respect. But it seems to us to be unfair to grant a new trial to respondents after they have had one trial in which all the facts might have been shown, and very
The judgment will therefore be reversed, and the cause ordered dismissed.
Hadley, C. J., Crow, and Root, JJ., concur.
Fullerton and Rudkin, JJ., took no part.