Port Blakely Mill Co. v. Springfield Fire & Marine Insurance

110 P. 36, 59 Wash. 501, 1910 Wash. LEXIS 1231

Opinions

Morris, J.

(dissenting) — I dissent for the reasons given in the opinion on the original hearing in Department One, to which I still adhere. The majority opinion as herein expressed wipes out the law of warranty in this state, a principle that is as old and well founded as any other principle in insurance law. There is no conflict between the Hart case referred to in the majority opinion and the rule announced in the opinion on the original hearing herein. The Hart case deals with a representation which the court refuses to extend into a warranty either by interpretation or implication, and holds that, in order to be read as a warranty, the provision must appear, to be expressly so intended by the insured and insurer, and in case of ambiguity or doubt, the construction should be that of a representation rather than a warranty. The same rules are announced and adhered to in the original opinion, and there was no expressed or implied intention to depart from them. It is said in the Hart case that, notwithstanding the policy contains hard and unjust conditions, the insurance company has the right to make' such a contract, and when so made, it is the duty of the courts to enforce them regardless of their harshness, when it appears such a contract was actually made. The original opinion goes no further. Finding an express warranty in the policy based upon a reduction of the premium, it gave effect to it, and in so doing followed the law both in principle and upon authority. '