69 Wash. 673 | Wash. | 1912
Lead Opinion
On August 20, 1910, plaintiff held three policies of insurance covering a certain stock of lumber. These policies were written by the New Brunswick, Glenn Falls, and Fireman’s Fund insurance companies, each policy being for the sum of $2,500. The New Brunswick company, being desirous of cancelling its policy, notified its local agents at Spokane to inform the assured of its intention. Instead of acting under the terms of the policy, which called for a five-day notice, the agents, Rogers & Rogers, who seem to have been factors in behalf of the insured as well as the company, immediately set about to secure another contract in lieu of the one the New Brunswick company desired cancelled. This they secured from the defendant, the Western Empire Insurance Company of Washington, on August 20th. The policy was dated August 22, 1910, but was not actually issued and delivered to plaintiff until the 23d. The property was destrojmd by fire on the 21st of August. After the fire, a surrender of the New Brunswick policy was demanded. Plaintiff refused to surrender it, but held both. The loss was thereafter adjusted by an independent adjuster, and the loss apportioned between the four companies. Defendant drew its check for the amount awarded by the adjuster—$1,233.79— and sent it to plaintiff, but stopped payment thereon prior to its presentment at the bank. Upon plaintiff’s motion, the case was withdrawn from the jury, and the court adjudged, as a matter of law, that plaintiff was entitled to recover.
This appeal is prosecuted in reliance upon the assertion that the policy of the appellant was not delivered or accepted by the insured prior to the fire, and therefore there can be no liability. Appellant had no notice of the purpose of Rogers & Rogers to cancel the New Brunswick policy and substitute therefor appellant’s policy, until after the fire. There were no conditions or limitations attending the contract. It was made in the usual way, and the policy issued in due course, and was made by an attached slip to date from August 20, 1910. The record hardly justifies the assumption that re
“If he had been consulted in the matter, he would have allowed the New Brunswick policy to have been cancelled on the ground that he had shipped out a sufficient amount of lumber to have reduced its value so that the five thousand dollars would practically cover it, but that he had not been consulted and had no knowledge of the issuance of the Western Empire policy nor any knowledge of a requested cancellation of the New Brunswick; but being that the adjuster had been on the ground and had adjusted the loss and had taken into consideration the fact of there being $10,000 insurance, that he proposed to hang on to all of the policies, as he did not propose to fall between the two stools, that is between the New Brunswick and the Western Empire.”
This falls far short of showing a refusal to accept, and when taken in connection with subsequent events, we think appellant was clearly bound to meet its engagement. It issued its policy, dating its liability from August 20; it had delivered the policy and knew of the destruction of the property at the time the loss was adjusted; it accepted proof of loss and participated in an adjustment which proceeded upon the theory that there were four valid policies; it accepted an award that relieved it of one-fourth of its liability, and issued its check therefor. These facts are an admission of liability, and clearly estop appellant from maintaining its allegation, that “it was without notice or knowledge of the fact that said plaintiff had refused to accept said policy, and that the same was not in force at the time of the loss.” 19 Cyc. 803.
The case of Stebbins v. Lancashire Ins. Co., 60 N. H. 65,
Affirmed.
Gose, Parker, and Fullerton, JJ., concur.
Concurrence Opinion
(concurring)—I concur for the reason that this action was brought upon the check. I find no valid