92 Wash. 230 | Wash. | 1916
Defendants are insurance agents who, having themselves issued policies, were instructed by the company to cancel them. Acknowledging this order, they said they would do so. Within two weeks the property was destroyed by fire and the company has been held liable by a jury after an unsuccessful defense that the policies had been canceled. Having paid the judgment, it now sues the agents for neglect to cancel.
That it was the duty of these agents to issue cancellations is abundantly established if proof of custom be proper, but this need not be discussed for they did undertake a duty which, had they refused to perform it, might seasonably have been done by the company itself. They cannot deny the obligation now.
When the suit was brought by the assured, the company tendered its defense to the agents who, though they declined to assume it, did actively assist. In that suit proofs of loss were admitted which were then contended to be unauthorized and not in compliance with the policies, for which reason the defendant agents now wish to go into that subject again to show that the company was thus not liable even though the policies had not been canceled. The lower court was correct in holding this question closed by the former judgment. Washington Gas Light Co. v. District of Columbia, 161 U. S. 316.
As to whether the agents failed to cancel the policies, a similar question might have arisen; but the lower court, leaving the issue open, heard the proofs submitted by the defendants. Their liability is clear. They, for their part, say they immediately mailed cancellations upon receiving the company’s letter, but all three addressees testified that none were ever received. The very manner in which the agents acknowledged the company’s order was justly commented on by the lower court. Instead of mailing the notices at once and then reporting that, they merely stated that they would
Against whom shall this judgment be entered? By the lower court it was rendered against both defendants. One of them, C. E. Dickinson, a nonresident, was already successful in quashing a service against himself, but the answer brings the parties in as follows:
“Come now the defendants R. L. Dickinson and C. E. Dickinson as a member of the firm of C. E. Dickinson & Company and not otherwise,” etc.
The lower court in holding this a general appearance by C. E. Dickinson was right. What the latter may have intended is immaterial, since courts accept jurisdiction from what a pleader says and not what he has in his mind or there would be frequent shiftings and little certainty in judgment rolls. Rem. & Bal. Code, § 241, provides that every appearance is general unless the defendant states it to be special, nor is it of any moment that the defendant has before that successfully or unsuccessfully made a special appearance. Bellingham v. Linck, 53 Wash. 208, 101 Pac. 843.
This defendant cannot be in court as a defending partner and not also as an individual, for individual or separate liability is the essence of partnership obligation. As for the
“The appearance of appellant was in form special, for the purpose of objecting to the court’s jurisdiction over his person, but in the body of his motion he invoked the jurisdiction of the court below on the merits, when he asked for a dismissal.”
'Judgment affirmed.