254 P. 817 | Or. | 1927
This appeal is from a judgment in favor of plaintiff for $2,000 on a fire insurance policy, $400 attorney's *167 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 Company 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 said 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 fee in case the jury found in favor of the plaintiff. AFFIRMED. 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 require 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 (3 ed.), §§ 393 and 399, notes 27 and 28;Ahearn v. United States, 158 Fed. 606; Bloch v. AmericanIns. Co.,
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 attorneys 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 *170
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.,
"Whenever any suit or action is brought in any court of this state upon any policy of insurance of any kind or nature whatsoever, the plaintiff, in addition to the amount which he may recover, shall also be allowed and shall recover as part of said judgment such sum as the court or jury may adjudge to be reasonable as attorney's fees in said suit or action; provided, that settlement is not made within eight months from date proof of loss is filed with the company; * *." Or. L., § 6355.
The instant case differs from the case last cited in that in the case at bar plaintiff alleged in his complaint a reasonable attorney's fee and demanded judgment therefor. The statute gives him that right, subject to be defeated by settlement within eight months from the time proof is filed with the company. In the Walker case the plaintiff did not demand attorney's fee in his complaint but sought to take advantage of this provision of the statute by amending his complaint at the time of the trial. This court held that not to be the proper way to introduce the issue of attorney's fee. The amendment sought was new matter arising since the action was commenced. The proper procedure was to introduce that matter *171 by a supplemental complaint. Under the statute we think it is permissible to anticipate the recovery of attorney's fee upon the condition named in the statute. The defendant is not thereby injured in any way, nor is it prejudiced. It could have moved against the allegation and possibly compelled the plaintiff to have again introduced it by a supplemental complaint, in case defendant did not settle within the eighth month from the time proof was filed with it. But defendant did not do that. On the contrary it joined issue upon that allegation. We think that defendant thereby waived any technical advantage it could have taken by moving against or demurring to the allegation for attorney's fee. 1 C.J. 107, 108, where it is written:
"By the weight of authority, it is ground for abatement, that the action was prematurely brought, even though the right of action has matured before the trial, as, * * where an action is brought before the happening of an event upon the happening of which the right to commence the action is to accrue; and in many other like cases."
The instant case is similar. The issue as to attorney's fee was not mature at the time the action was commenced. As to that issue the action was prematurely brought. Facts "merely showing that the action was prematurely brought are not available as matter in bar, but the objection must be raised by plea or answer in abatement, unless it appears on the face of the declaration or complaint, when it is ground for demurrer." 1 C.J. 109, note 3;Barnum v. Lockhart,
The judgment is affirmed. AFFIRMED.
RAND, J., concurs.
BURNETT, C.J., and McBRIDE, J., concur in result.
