Olympia Brewing Co. v. Pioneer Mutual Insurance

Citations

• 53 Wash. 16
• 101 P. 371
• 1909 Wash. LEXIS 1264

Syllabus

<p>Insurance — Actions—Pleadings—Reply—Issues and Proof— Scope of General Denial — Unnecessary Affirmative Defense — Premiums — Policy—Waiver of Condition Requiring Payment. In an action upon a fire insurance policy in which the defendant answered that part of the premium was past due and unpaid, under a policy providing that the company was not liable for a loss occurring in such case, a general denial in the reply permits, as within the issues, evidence on the part of the plaintiff that the company waived payment of a portion of the premium and extended a credit for the balance due, irrespective of an affirmative defense in the reply that the original contract called for payment of the premium in installments; hence failure of the plaintiff to prove such affirmative defense is immaterial where, under the general denial, it proved the waiver; such a waiver keeping the policy in force.</p> <p>Same — Burden of Proof. In such a case, the burden of proof is upon the defendant to show that part of the premium was unpaid and past due.</p> <p>Insurance — Policy—Limiting Amount of Loss. Under the terms of a policy of fire insurance and Laws 1903, p. 147, limiting liability for loss by fire to three-fourths of the actual value of bar fixtures, $280, judgment for the full sum is excessive, and should be reduced to $210.</p> <p>Costs — On Appeal — Decision—Excessive Judgment — Objections Below. Upon appeal from an excessive judgment for a loss by fire, being for the full value rather than three-fourths of the value of the property insured, in which the judge was in doubt as to the evidence of value and requested a transcript of the evidence, the appellant will not be allowed costs on reversal of the judgment because excessive in amount, where the excess was not called to the attention of the trial court below.</p>