Emigh v. State Insurance

27 P. 1063, 3 Wash. 122, 1891 Wash. LEXIS 129

• Court: Washington Supreme Court
• Decided: November 13, 1891
• Docket: No 290
• Status: Published

Opinions

The opinion of the court was delivered by

Stiles, J.

The sixth section of the act of March 22, 1890 (Acts, p. 335), enacted that a bill of exceptions might be made a part of the record of a case on appeal, “as provided by chapter 19 of the Code of Washington relating to exceptions.” The twelfth section of the same act repealed the act of February 3,1886 (Acts, p. 70), which was entirely devoted to changing and remodeling chapter 19. In view of the language used in § 6, the intention of the legislature to revive chapter 19 is clear and unmistakable. This view is strengthened by the fact that the act of February 25, 1891 (Acts, p. 85), purports to amend § 260 of the code, which was one of the sections expressly repealed by the act of 1886. The bill of exceptions in this case was therefore governed by chapter 19, which required notice of presentation and settlement; and, as no notice of the settlement was given, it follows that the motion to strike the bill must be granted.

This leaves the case to be considered upon the only error assigned which appears in the record, viz., the demurrer to the complaint. The complaint is in very general terms, and does not purport to set out the policy sued on. The demurrer was on the ground that there were not sufficient facts. In every action for insurance money there can be no recovery except upon the performance of certain acts by the insured, and the existence of certain facts; and the performance of the acts and the existence of the facts must be alleged. May, Insurance (3d ed.), § 589. The interest of the insured in the property destroyed, and the value thereof, must also appear. Id., § 590. In this case the complaint does not show either proof of loss, ownership, or value. It does state that notice of the fire was given to the defendant, and that plaintiff was “damaged” by the fire in certain sums; but there is no allegation that plaintiff wasthe owner of the property. But notice of the fire is not proof of loss, nor would it admit evidence showing a waver thereof; and the allegation that the insured was “damaged ” in a certain amount is no allegation of value. In the absence of a demurrer, perhaps some of these objections might be taken as cured after verdict. But the demurrer challenged the pleading on account of their absence, and it should have been sustained. Owing to the peculiar attitude in which the cause is placed by the motion to strike out the bill of exceptions, we cannot notice other features of it.

The judgment is reversed, and remanded to the superior court, with instructions to sustain the demurrer to the complaint.

Anders, O. J., and Scott and Hoyt, JJ., concur.