16 Wash. 193 | Wash. | 1896
The opinion of the court was delivered by
This is an action brought by C. W. Waldron against the Home Mutual Insurance Company, upon an alleged contract for insurance in the appellant company upon a certain two-story frame building in Whatcom county. The contract is alleged to have been made between the respondent and the firm of McLennan & Reed, agents of the appellant
This cause was before this court in October, 1894, the report of which is in 9 Wash. 534 (38 Pac. 136). In the trial upon which that appeal was based, the judgment was rendered for the respondent as in this case, but the cause was reversed and sent back for a new trial, for the reason that there was a variance between the contract declared upon and the contract proved, in that the contract declared upon was for the insurance of one building in the sum of $500, while the evidence showed a contract to insure two buildings, one for $500, and one for $100. The reversible error has been obviated in this case.
The appellant’s assignments of error based upon erroneous admission of testimony are not, in our opinion, meritorious; the questions were admissible and, therefore, the appellant was in noway prejudiced. There was an assignment in this connection, namely, that the court erred in permitting the respondent to testify as to what the agent told him concerning the company’s claim that the policy had not been delivered, on the ground that the company could not be bound by the statement of the agent, which might have some weight if it were founded upon the record; the record shows, however, that this was not a statement of the agent which was intended to bind the company, but simply a statement of what the com
The answer in this case raised a direct issue as to the main fact stated in the complaint, viz., that the appellant had agreed to insure the building and had taken the application for such insurance. It is undoubtedly well established law that where there is an oral contract entered into for insurance, all the essentials having been agreed upon, and loss occurs before the policy is actually issued or delivered, the contract is binding upon an insurance company in accordance with the terms of the agreement, just as though the policy had been issued. 1 May, Insurance, §§ 20-23; 1 Wood, Insurance, § 20.
Indeed, this proposition is not disputed by the appellant, but his claim is that the law requires the plaintiff upon such an oral contract to prove by clear and conclusive proof that such contract was made. The burden of proving this contract is, of course, upon the plaintiff, as the burden is upon any litigant to prove an affirmative proposition, but we know of no reason why there should be a distinction, so far as the weight of testimony is concerned, between this and any other case where the question of proof is submitted to a jury.
In this case the agent of the company was not present, and an affidavit was offered by the appellant, setting up the fact that the agent, if present, would swear virtually in opposition to the statement made by the respondent concerning the contract. It was admitted by the respondent that the witness, if present, would swear as indicated by the affidavit. Now, it is contended by the appellant that, inasmuch as there is a direct conflict between the only persons having a knowledge of the facts, who testified at the trial of this case, that if the witness McLennan could
But it is all a question of fact for the jury to pass upon, and the testimony being conflicting, and the jury, under proper instructions, having rendered their verdict presumably based upon the weight of testimony, and there being sufficient testimony on the part of the plaintiff to sustain the verdict, under the uniform rulings of this court, the judgment will not he disturbed. Finding no error in the record, the judgment will be affirmed.
Scott, Anders and Gordon, JJ., concur.