3 Wash. 485 | Wash. | 1892
The opinion of the court was delivered by
The third paragraph of the complaint alleged the issuance of the policy, by the appellant, and gave its
The policy covered “one hundred and thirty-five dollars on his Nerbin safe,” and “thirty-five dollars on his store fixtures,” besides insurance on stock, and the complaint alleged the loss of the “whole of said stock and fixtures.” It is insisted that there could be no recovery for the safe because its loss was not specially pleaded. At the trial objection was made to the testimony of Pencil that the safe was worth $35, which the court overruled. We think it clear, taking the complaint altogether, that the safe and store fixtures were intended to be covered by the word “fixtures” used in the allegation of loss quoted above; and there was evidently no surprise to the company in that construction, since the proof of loss submitted to it immediately after the fire made known the claim that the safe had been destroyed.
The policy contained an arbitration clause whereby it was provided that no suit should be commenced until after an award obtained in the manner stipulated, and it was submitted by the appellant without argument that it should have had a charge to the jury, as requested, upon that subject. But we do not consider that this case demanded a charge upon that point. Under the policy, arbitration was
This policy contained an express written stipulation that there might be other insurance to the amount of $1,840, and a printed condition as follows:
“In no case shall the claim be for a greater sum than the actual damage to or cash value of the property at the time of the fire, nor shall the assured be entitled to recover of this company any greater proportion of the loss or damage than the amount hereby insured bears to the whole sum insured on said property, whether such other insurance be by specific or by general or floating policies.”
The policy was itself specific, the insuring clause covering “$400 on his stock of boots and shoes; $1,440 on his stock of general merchandise, not including boots and shoes; $135 on his Nerbin safe; $35 on his store fixtures.” Now, it appeared that subsequent to the issuance of the policy of the appellant the respondent obtained from another company a second policy of $400 on his stock of general merchandise, not including his stock of boots and shoes, so that he had in all $2,140 insurance on that class of goods. Under this state of the evidence appellant asked the court to charge that, if the jury found for the plaintiff, the verdict should in no event be for an amount in excess of the proportion of the total damages which the sum insured under the policy in suit bore to the total amount of insurance on the property, A precisely similar clause in a
i The next point made is upon the refusal of the court to give a charge concerning the ownership of the property at the time it was insured, to the effect that unless, according to the terms of the policy, Pencil was the sole owner, the policy was void. The fact appeared from the evidence to be, that Pencil was doing business in a building owned by one Cooper, who himself had a few goods in the store. Cooper, about the time Pencil commenced business, proposed that he become a partner with Pencil, putting in the use of his building and certain money he expected to receive, and the goods he had, as his part of the capital. Cooper was postmaster at West Seattle, and kept the post office in the same building. Pencil assented to the pro
We now come to consider the main error complained of. As was before stated, the appellant, very soon after the fire, accused Pencil of being the author of his own destruction,
“Seattle, April 15, 1890.
“For value received, I promise to pay Murdock Stewart the sum of four hundred and seventy-five dollars, immediately on settlement and payment of the insurance company my claim. W. L. Pencil.”
The testimony of Stewart and Orenshaw was, that they took the money and note solely for the purpose of using them as evidence in an expected criminal prosecution of Pencil, and the evidence upon this subject covered a large range which it is not necessary to review. The theory of the defense was, that this transaction was an attempt by Pencil to close the mouth of Orenshaw as to any facts which he might be able to testify to concerning Pencil’s suspicious actions a few hours before the fire, and which, if known to the insurance company, might make it hesitate or decline to pay his loss. On the other side the whole thing was denounced as a conspiracy on the part of Nelson, Stewart and Orenshaw to get what money Pencil had by frightening a weak, half-sick old man into believing that they held him in their power, and to earn a reward of five hundred dollars offered by the insurance union for the arrest and conviction of incendiaries. In this condition of the case the court charged the jury thus:
“If you find by a fair preponderance of the testimony herein that plaintiff attempted to induce the said Orenshaw*493 and Stewart, or either of them, not to give any testimony or make known any facts to the defendant which would show or tend to show that plaintiff had set out or caused to be set out the fire which burned the property described in the said policy of insurance sued on herein; or if you find that plaintiff paid or offered to pay the said parties, or either of them, any sum of money as an inducement to them to suppress such information or testimony (and that such testimony or information was true), then you should find that the plaintiff has been guilty of such fraud as will vitiate the said policy of insurance and prevent his right to recover thereon; and in event you so find, your verdict should be for the defendant.”
This charge was given at the request of the appellant, except that the line in parentheses was injected by the court, and error is alleged upon the modification thus made. Without the modification, the instruction would have been that any attempt of Pencil to induce Stewart or Orenshaw by words or money not to state what he knew to be absolutely false, and knew to be so known by them, would render his policy void under that clause which read—
“Any fraud or attempt at fraud, or any false swearing on the part of the assured, shall cause a forfeiture of all claim under this policy.”
As modified it meant that the suppressed statement must be a true statement. Stewart and Orenshaw both testified freely and fully at the trial. The former knew nothing about the matter except what transpired in connection with the note; and the latter nothing but that and the fact that he saw Pencil pass the front of his saloon at about eleven o’clock at night, some three hours before the fire broke out. Cooper and Pencil both testified that Pencil was in his bed in a room over the store at that hour, and until he was awakened by the alarm of fire from without.
It is beyond question that, aside from the terms of insurance contracts, public policy requires that every person whose property which has been covered by insurance is de
While the practice of submitting special interrogatories to juries under Code, § 242, would, perhaps, in many cases, conduce to a more correct administration of justice, the statute leaves the matter entirely in the hands of the trial court, and there was, therefore, no error in the refusal to submit in this case.
Appellant argues upon two other instructions which are said to have been given at the request of respondent. But there is nothing in the exceptions to identify them. There are eight exceptions of this kind, but the charge of the
Upon all points, therefore, the judgment is affirmed.
Anders, C. J., and Dunbar and Scott, JJ., concur.
Hoyt, J., did not sit, being disqualified.