125 Wash. 118 | Wash. | 1923
This action was brought by Anna Katherine Young, as executrix of the estate of John R. Young, deceased, against the Travelers Insurance Company, a corporation, to recover upon an accident insurance policy. Her cause of action is based upon the claim that John R. Young, on October 23, 1918, prior to boarding the steamship “Princess Sophia” at Skagway, Alaska, to take passage to Vancouver, British Columbia, purchased from an agent of the insurance company a policy of insurance under which $5,000 was payable if the insured lost his life through the wreck of the steamship. It is admitted that the decedent, John R. Young, was a passenger on the steamship named, and that he lost his life on October 25,
The cause was tried upon an amended complaint, which set forth the contract of insurance in its substance and effect; the plaintiff alleging that she did not have the policy, and that it had never come into her possession, but that same, according to her understanding and belief, was the standard form of policy used by the insurance company at the place of its issuance. On its appearance in the action in response to the summons served upon it on the filing of the original complaint, the insurance company demanded of the plaintiff a copy of the insurance policy, and again renewed its demand on the filing of the amended complaint. No copy was furnished in response to either demand, and on the trial the insurance company objected to the introduction of any evidence of the policy because of the neglect and failure of the plaintiff to comply with its demand. The trial court overruled the objection, and this ruling forms the basis of the first error assigned. The statute upon which the objection is based is found at § 284 of Eem. Comp. Stat, [P. C. § 8368], and reads as follows:
*121 “It shall not he necessary for a party to set forth in a pleading a copy of the instrument of writing, or the items of an account therein alleged; hut unless he file a verified copy thereof with such pleadings, and serve the same on the adverse party, he shall, within ten days after a demand thereof in writing, deliver to the adverse party a copy of such instrument of writing, or the items of an account, verified by his own oath, or that of his agent or attorney, to the effect that he believes it to be true, or be precluded from giving evidence thereof. The court, or judge thereof, may order a further account, when the one delivered is defective, and the court may, in all cases, order a bill of particulars of the claim of either party to be furnished. ’ ’
For a palpable disobedience of this requirement of the statute this court has in a number of cases held that it was error not to enforce its provisions. Plummer v. Weil, 15 Wash. 427, 46 Pac. 648; Sanborn v. Dentler, 97 Wash. 149, 166 Pac. 62, 6 A. L. R. 749; Ford v. Leschi Market & Grocery Co., 117 Wash. 686, 202 Pac. 247.
But we have also held that a party is not required to furnish by a bill of particulars facts already in the possession of his adversary, nor is he required to furnish by that means copies of instruments as accessible to his adversary as they are to him (Messick v. National Council of Knights & Ladies of Security, 103 Wash. 143, 173 Pac. 940); and have also held that, since the penalty imposed is severe, the statute will be strictly enforced only in those cases where the right' is clear. McDonald v. McDonald, 119 Wash. 396, 206 Pac. 23.
In this instance, it is at once apparent that the plaintiff could not comply literally with the demand. She did not have, and never had, the policy in her possession, and to furnish a literal copy of it was impossible.
A case in point is Security Insurance Co. v. Slack, 183 Ill. App. 579. The action was'upon a lost insurance policy. The court said:
“ Paragraph 32 of our Practice Act (J. & A. § 8569), provides that: ‘If the declaration and copy of the instrument of writing or account on which the action is brought, shall not be filed ten days before the second term of the court, the defendant shall be entitled to a judgment as in case of non suit.’ Appellant insists that as the copy of the insurance policy here sued on was not filed ten days before the second term of the court, to which the suit was brought, its motion for judgment dismissing the suit should have been sustained.
“In the case of People v. Pace, 57 Ill. App. 674, which was a suit at law on a lost bond, it was held by this court that the section of the statute which requires plaintiff to file a copy of the instrument sued on does ■not relate to instruments which had been lost; that if there was no original instrument in existence the law does not require a copy to be filed, and we adhere to the reasoning upon which that decision was based. ’ ’
Under a similar statute in Indiana it has been held that, upon an allegation that the instrument sued upon is lost, it is not necessary to furnish a copy. Blasingame v. Blasingame, 24 Ind. 86; Anderson School
The appellant next contends that the court erred in submitting the case to the jury upon the facts. It appears from the record that, in addition to the plaintiff's decedent, J. R. Young, there was also an R. Young, who took passage on the same vessel. R. Young also died as a result of the foundering of the vessel. There was only one policy issued to a person named Young. The heirs of R. Young, through his executor, made claim to the insurance, and the insurance company, under the belief that R. Young was the person insured, paid the insurance to his executor. Some part of the insurance company’s records had been destroyed prior to the commencement of the present action, and the fact as to which of the Youngs the policy was issued rested largely in the recollection of the agent who issued the policy. This agent testified positively that he knew J. R. Young personally, that he recognized him by his photograph which was introduced in evidence, and that the policy was issued to J. R. Young. While there is much that casts a doubt whether the witness correctly remembered the transaction, the fact was for the jury and we cannot say that their verdict was without evidence in its support.
The appellant offered evidence to the effect that R. Young, on the last two of his five one-Avay trips to and from Alaska, had taken out accident insurance policies similar to the one here in question and had mailed them, before starting his journey, to a sister. The court rejected the evidence and error is assigned thereon. But we cannot think this ground for reversal. Its probative force was slight at best; it could tend only to show a probability that R. Young was the purchaser
The appellant requested the following instruction:
“I instruct you that the contract sued upon in this case, if there was any such contract, was a written contract consisting of two parts, one being the policy and the other the stub, the policy by its terms insuring the person named in the stub. It is necessary, therefore, for the plaintiff in order to recover to prove by a preponderance of the evidence that the name of J. E. Young appeared on the stub of the policy upon which plaintiff claims. If you do not find, therefore, by a preponderance of the evidence, that the name of J. E. Young was written on the stub of the policy under which plaintiff claims, you will find a verdict for the defendant.”
But we cannot accept this as a correct statement of the rule. The question for determination was whether in fact the policy had been issued to J. E. Young, not whether his name was correctly written on the stub torn from the policy. In other words, the plaintiff is entitled to recover if the proofs show that the policy was issued to her decedent, regardless of the name written on the stub. The court, in its instructions, recognized this principle, and we find no error in its refusal to give the requested instruction, or in giving instructions stating the rule as we conceive it to be.
In submitting the case to the jury, it was stipulated that the jury, if they found for the plaintiff, should return a verdict for the face value of the policy, and that the question of interest should be determined by the court. In entering judgment on the verdict the court allowed interest from September 8, 1919, the
The final contention of the insurance company is that the court erred in allowing witness fees to a witness (W. R. Gray), who attended at the first trial of the cause. It is objected that this was error, under our decision in Briglio v. Holt & Jeffery, 91 Wash. 644, 158 Pac. 347. But we think this mistakes the effect of the decision. The costs of the prevailing party on an appeal are recoverable against the losing party regardless of the final outcome of the action, and this was what we meant to say in the decision cited. Whether the costs of a prior trial are to be taxed in favor of the prevailing party on the final determination of the cause depends upon the circumstances of the case. We have held that, where the losing party is entitled to a new trial because of error of law committed by the trial court, he is entitled to it unconditionally, and that the trial court cannot, as a condition precedent to granting the new trial, require a waiver of costs on his part. Casey v. Malidore, 19 Wash. 279, 53 Pac. 60. But where a new trial is granted in the
The judgment is affirmed.
Main, C. J., Parker, Tolman, and Pemberton, JJ., concur.