Daily capital journal. (Salem, Or.) 1903-1919, July 21, 1911, Image 4

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Daily capital journal., July 21, 1911, Page PAGE FOUR, Image 4

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Newspaper Page TextFACE FOCB OREGON SUPREME Nil Text Psbllhe4 by Co.rtesy of Supreme Pat In Msltnoman lonnij. R. if. Dakin, respondent, v. Queen City Fire Insurance Co., of Sioux Fall, South Dakota, a corporation, appellant. Appeal from the circuit court for Multnomah count. Hon. W. N. Catena, Indue. Argued and submitted July U. 1H. H. M. Gake for respondent. W. E. Farrell for ap pellant. Moore, J. Affirmed. This In an action to recover the amount of an Insurance policy. Jt l allied In the complaint In effect that defendant Is a corporation and on June 17, 1908. In consideration of the payment of the required pre mium It IxHiif d to plaintiff a policy stipulating to Indemnify him aKalnst Injury by Are, occuring within a year, to a stock of driiKH, etc., and to the Htore and fixtures In which the medi cines were kept at Mt. Angel, Oregon to the extent of $700 and $."00 re spectively; that about September 1, 190S, the Insured property was whol ly destroyed by fire and defendant was Immediately notllled thereof; whereupon Its general agent, John C. Fox, came to adjust the loss and plaintiff furnished III in a written statement of the property consumed as nearly as he could from memory all his books and papers having been destroyed, and such agent promised to make out, from the memoranda submitted, formal proof of loss and return the same to plaintiff for sig nature and verification: that Fox failed to keep such promse but plain tiff relying thereon did not make out or Blgn any other memorandum of loss until March. 1009, when he de livered to defendant a detailed writ ton and verified statement thereof which was returned to him, where upon ho prepared and submitted amended proof; that plaintiff had Kept and performed all tho condl tlona of th policy required of him, except the making of the proof of loss within 60 days after thn fire, and his dolay In this respect was caused by the conduct and promises of dof.nuliint; and that no othor ln suruncn was over placed on any of me property, tho valuo of wh eh a tho tlmo of the flro exceeded $1200 for Which sum Judgment wris e- manded. Tho answer admitted that the defendant Is a corporation; that It executed tho policy mentioned; that the lumired property was total- ly d.wtroyed August 30, 1908; and that plulntlff did not sign or submit any proof of loss until March 29, 1909, when the memoranda fur- nlshed was returned bocause of In- sulllc.lency and another wns sup- piled April 27, following, which was equally defective. The othnr aver- niHirts of the complaint are denied generally. For separate defenses certain conditions of the policy were set forth and breaches thereof averred, but all the stipulations are abandonedl except tho one relating to the proof of loss, Tho reply hav- Ing denied tho allegations of new muttor In the answer tho cause wns trlod Msultlng In a Judgment, for plttlntlff In the sum of $1000 and de- roniiunt appeals. Moore, J, It Is maintained that an error was committed In permit ting tho defendant's agent who so licited the Insuranco to testify, over objection anl exception, respecting the value of a stock of drogB. medi cines, etc., when It appeared that he . had no special knowledge of that class of goods, M. J. Van Valkon-1 (hat before the policy whs Issued ho. , iK'ieiiiimii ugeiii, mammon tno goods and fixtures Involved! herein and estimated their values at $1200 and $1000 rosmx'tlvclv. It rioen not nppmr that this agent had any ' special knowledge of the value of ; the stock of goods, and if his est i- tllltftl fliMtSViit wna limits! in U I value at the tlmo of tho flro, It Is! ' " ---ira Ti no iiiiini-ii iif tlltl ; s ure to please wholesome A 'ways an invigorating, pure and delightful drink, L E ends strength wearied physique, ffecls a soothing cure for the nervous ills of life, M akes life more pleasant and cheers the heavy heart, s ! B rings good who partake E nlivens tho spirit of tho down cast and disheartened. E ndows existence and aspirations I R cstores man to fulness strength and activity. TOUT I i 1 i . . . FoUy Kidney PiiU COURT DECISIONS F. A. Tomer, B-porter of the Court possible that the error in permitting him to testify In relation thereto might have been prejudicial. It Is fair to assume that the value of a stock of goods kept for sale will constantly fluctuate and that the zorib will be increased or dimin ished by tho sale and replenishing of tho merchandise. Since the In demnity for the loss of the goods ry Are was nlaoed at $700, It may be supposed that the agent considered the merchandise or an equal or a greater value when the policy was Issued. The fact that Van vamen berg saw the drugs, medicines, etc., contained In bottles, boxes and package would not enable him to estimate the worth of that class of goods uiUf-Hi he hud some special knowledge In relation thereto. A person who had never heard or read of a diamond would be a very poor Judge of tho value of such a precious gem when first seon by him We believe that Van Valkenberg was not competent to estimate the worth of the drugs, but as the value mhi.-h h i.ineot thoreo n had but , little bearing on the worth of the ' stock of goods destroyed by fire, the orror was not prejudicial. Tho: appraisement mado by such agont of tho fixtures which were burned stands on a different foot ing. The shelving, counters, show cases, etc., were not sold. They wero, however, In such general use that persona of ordinary intelligence who had seen them ought to bo able to give a fair estimate of their worth. Huckman v. Imbler Lumber Company 42 Or. 231. If an opinion wore based on a Hypothetical ques tion as to the value of such, goods Van Valknnborg's Judgment might not have been sufficient but as be saw the fixtures he must have had some reasonable conception of their worth. In any event his estimate, In our opinion, Is not so prejudicial as to necessitate a reversal of the Judgment. The plaintiff having been permit ted, over objection and exception, to testify that a safe Injured by the flro cost $300 In Chicago In 1905 and that he paid freight charges thereon of $100, It Is maintained that an error was thereby commit ted. Tho valuo of Insured goods at the tlmo of their destruction by or Injury from flro affords tlie measure of Indemnity for the loss. A Are proof or a burglar prof safo Is not subject to deterioration by ordinary use as ara many articles of mer- rhandlsn kept In a store, so that tho cost of a saf e may furnish Its fair value unless It has been supplanted by a more modern or superior strong box or Its price lessened by compe- tltlon. Tho defendant's counsel had nn opportunity, on cross examlna- tlon of plaintiff, to show tho rea- sonablo worth of the safe at tho tlmo of the fire, so that In pormlt- ting him to testify as to tho cost of and translocation charges upon tho safo no error was committed, It In contonded that certain cor- respondence between plaintiff's at- . mmmm Dr. Lyon's PERFECT Tooth Powder neutralizes the destructive acids of the mouth cleanses, preserves and beautifies the tppfU anf imnnrU nnriiv le 30(3 lmPa"S Punty and fraerance to the breath. the lovers of a beverage, to tho weak and fellowship to all in moderation. with hopes mm .ro tonic in Won, AT J C PERRY tornfys and defendant's general at torney and between them and John C Fox, Its general agnt, should have been received In evidence and that la excluding this epistolary In tercourse errors were committed. The letters chiefly relate to argu ments adduced by the respective parties for and against the payment of the loss produced by the Are and the reasons for and effect of not making proof of loss within the time prescribed. The reasoning thus Bet forth could as well have been orally made by counsel at the trial as w as probably done, and any state ment of fact contained in the letters could have been detailed by wit nesses called for that purpose. The letters, in our opinion, were lnad mlssable and no errors were com mitted In refusing to receive them. The plaintiff testified that soon af ter John C. Fox visited Mt.. Angel and conferred with him regarding the loss; that lists of the furniture burned were made out by each and compared to see that they were Iden tical; and that the general agent took one of the schedules while the witness retained the other. There was then received In evidence, over objection and exception, plaintiff's exhibit "B" consisting of two sheets of paper on the first of which was written with a pen: "Statement of the fixtures and the amount allowed by Mr. Fox while here." Immedl- ateiy neiow appears a nsi oi aru cles of furniture andr the respective values thereof aggregating $884.5. At the foot of the page the following memorandum appears: "Mr. Fox al lowed on the above $442.27 claiming that they would only be worth half on account of being used and second hand at the time of the fire." The second sheet is entitled: "Copy of list of fixtures as taken by Mr. Fox and price allowed by him:' here fol lows a duplicate lint of articles of furniture and the value thereof as stated on the first page. On cross examination plaintiff's at tention was called to exhibit "B" and he stated upon oath that such lists were copied liy him In Ink from a schedule which he made ith a lead pencil, and referring to the sheet of paper which contained the memoran dum of the sum allowed by the gen erul agent defendant's counsel In quired: "You and Fox sat down to gether, now, didn't you?" A "Yes, sir." Q. "And you made lead pencil copies of all these things here?" A. "Yes, I copied It with Ink after wards." Q. "And after Fox went away you copied It In Ink?" A "Copied mine, and he had his with him. I think maybe that Is the way It Is." Defendant's counsel there upon moved to strike out the ex hibit on the ground that It con tained a self-serving declaration. Plaintiff's counsel, resisting the mo tion, Inquired of their client: "Re ferring to the second page of exhib it "II" was that made out at the same time that the first page was?" and the witness replied: "No Sir." Q. "When was that made out?" A. "This was made out at the time Mr. Fox was down there at Mt Angel, adjusting the matter." Q. "In his presence?" A. "Yea, sir, right be fore hlm." Q. "And that Is the one that you kept?" A. "Yes sir. I sent the top page to Mr. Cake." (his at torney) The court having refused to strike out exhibit "II" It Is asserted by de fendant's counsel that an error was committed. It will be remembered that the exhibit consists of two sheets of pnper, the first of which had been prepared by plaintiff and sent to his attorney and was lnad- miRsame, but as the motion to strike out assailed the entire piece of evidence, one part of which was admlssable, no error was committed in denying the request. It Is contended that an error was committed in. permitting the plain tiff, over objection and exception, to testify, in Bubstance, that pursuant to agreement with Mr. Fox he sent, In proper time, a schedule of the goods In tho store when it burned, as near as he could recollect, a copy of which list was received In evidence containing items respectively valued amounting to JIS30.90; that Fox promised upon the receipt of such Inventory that he would nreimre n,l send to the witness formal proof of loss, but neither he nor the defen- uant nau ever comulied therewith and that such failure occasioned the uemy in making other proof which was not submitted until March, 1909. The policy Issued to nlnlntlff mn. talned on tho face thereof a clause to the effect that It was subject to u me supinations and conditions printed on page two thereof; "and no officer, agent or other representa tive of this company shall have pow er to waive any provision or condition or this policy except such as, by the terms of this policy, may be the """J"11 m agreement endorsed here n or added hereto; and as to such provisions and conditions, no officer 7"" r representative, shall be ui nem to nave waived such provision or condition, unless such wa.ver. If any. shall be written upon or attached hereto. nr h'i, privilege or permission affecting the Insurance under this policy exist or be. claimed by the insured unless 80 .r ' The condl- .....o i ea , provided In sub void r . ". y h01,M b? void If the Insured concealed or ....... . ,..rWmwl Rny material fact i, V. , . "1!l,rftn('e: or If he n ' lm'rcatlp' wrocurred anv ' wire upon the nnuun. or upon renewal of the policy If the wn .... ...... " ,n"sed without ........ , ,ne company. Tmse 'uher! o,ly Mpr0M 'P'l"tlons hereby the contract of Insurance u renuereu ineffectual. I no following clauses are printed m page two of the policy; "If fire occur, the Insured shall Uve Immediate notice of any loss tlwreby writing , ,hj f protect the property from further damage forthwith separate the dam aged and undamaged personal prou 'rty. put it in the best possible or der, make a complete Inventorr nf ..... ,unK lne quantity and cJst of each arttcle and the amount mu ita.ritta-' reu. Refuse substitutes. OTTUMWA WOMAN CURED By Lydia E. Pinkham's Vegetable Compound 1 Otttrmwa. Iowa. "For vears I was almost a constant sufferer from female trouble m ail us dreadful forms; shootini; oalns all over my body, sick headache, s p l n a i weakness, dizziness. depression, and everything that was nurriu. iwicuuuuj doctors in different nart3 of the United tates, but Lydia inkham's vegeta ble Compound has done more for me than all the doctors. I feel it my duty to tell you these facts. My heart is full of gratitude to you ior my cure.- Mrs. iiakkiet r,. V ampler, 624 S. ltansom Street, Ottumwa, Iowa. Consider This Advice. No woman should submit to a surgi- cal oneration. which may mean death. until she has given Lydia E. Pinkham's Vegetable Compound a tair trial. This famous medicine, made only from roots and herbs, has for thirty years proved to be the most valuable ionic and invigorator of the female organism. Women residing in almost every city and town in the United States bear willing testimony to the wonaerrtu virtue ot .Lyaia i. nun. ham's Vegetable Compound. Mrs. Pinkliara, at Lynn, Mass. Invites all sick women to writ' her for advice. I lor advice is i'rei confidential, and always hclpfr claimed thereon; and, within 60 days after the Are unless such time Is extended In writing by this com pany, signed and sworn to by said insured, stating the knowledge and belief of the Insured as to the time and origin of the (ire; the interest of the Insured and of all others in the property; the cash value of each item thereof and the amount of loss thereon; all encumbrances (Incum brances) thereon; all other Insur ance, whether valid or not, covering any of said property; and a copy of all the descriptions and schedules In all policies; any changes in the title, use, occupation, location, posesslon or, exposures of Bald property since the Issuing of this policy; by whom and for what purpose any building herein described and the several parts thereof were occupied at the time of the fire; and shall furnish If required, verified plans and speci fications of any building, fixtures or machinery destroyed or damaged; and shall also, if required, furnish a certificate of the magistrate or notary public (not Interested In the claim as a creditor or otherwise not (nor) related to the insured) living nearest the place of fire, stating that he has examined the circum stances and believes the Insured has honestly sustained loss to the amount that such magistrate or no tary public Bhall certify. The In sured, as often as required, shall exhibit to any person designated by this company all that remains of any property herein described and sub mit to examination under oath by any person named by this company and subscribe the same; and, as of ten as required, shall produce for examination, all books of accounts (account), bills, Invoices and other vouchers, or certified copies thereof. If originals he lost, at such reason able place as may be designated by this company or Its representative, and shall permit extracts and copies thereof to be made. No suit or action on this policy, for the recovery of any claim, shall be sus tainable, In any court of law or equity, until, after full compliance uy the insured with all the forego- ing requirements, nor unless com menced within 12 months next after the tire. it wi:i be observed that while some provisions to which reference has been made declare that the pol icy shall become void upon certain conditions the failure to submit proof of loss within 60 days from a fire, when that limit has not been extended Is not within the specifica tions enumerated. It Is a maxim of universal application that forfeitures are not favored. In speaking of the requirement to furnish proof of loss to entitle the Insured to maintain an action against the company a text writer says: "But the provisions in the policy in this respect as In oth ers are to be liberally construed in mvor or the Insured." 19 Cyc. 844. io tne same etfect see 4 Joyce Ins Sec. 3275. The editors of the Amer ican and English Encyclopedia of - ooi i.!. 2a Kd. 329) in discuss ing the question under consideration ay: Anil If no forfeiture Is nrnvlil. ed for in case of fnilure to furnish proofs, forfeitures being stipulated Incase of breach of other require ments, or furnishing the proofs In the specified time Is not expressly made a condition precedent to re covery, the great majority of recent decisions hold that the effect of fail ure to furnish them is merely to postpone the time of payment to" the 'e.me(i time arter they are fur nlshed." This legal principle was followed in Stinchoomb v. N. Y. Life Ins. Co. 4fi Or. 316 where In construing the iiMisions or a life insurance policy It was determined that nonenmnit" ance with the stlnulatlons to submitting proofs ot death, within mo wine specinea where no penalty w-as attached for a failure to comply therewith did not render the policy void, but required the furnishing of the proofs before Instituting an ac tion on the contract of Insuranco The rule adverted to having been thus recogniied Is controlling here in, and such being the case no er rors were committed in allowing Plaintiff to testify respecting the cause of the delay in furnishing proof of loss. 6 An exception having been taken to 6 M a part of the general charge it Is maintained that the court erred In instructing the Jury as follows: There is only one question in mis case for you to decide and that is the question of value or tnis proper ty at the time of the Are." It will be kept in mind that the complaint alleged that John C. Fox promised to make out, from memoranda received, formal proof of loss and send the snme rn olalntlff and that the failure of defendant's general agent In this respect necessitated the delay in submitting such proof, which aver ment is denied generally in the an swer. The complaint does not al lege that proof of loss was waived in any manner. It seems to be con ceded from an examination of plain tiffs primary pleading that a com- plaince with the requirements or tne terms of the policy is essential to the maintenance of this action (Wel- dert v. State Ins. Co. 19 Or. 2bl) for it is alleged that such proof was made though not within the time limited therefor. It might well be claimed that the Informal proof sub mitted by plaintiff to defendants general agent afforded some evi dence of the loss, but however this may be more formal manifestation thereof was undertaken. The averment of the delay In of fering proof of loss and the state ment of the reason therefor constl stute a narrative and like all other historical matters of inducement the allegation was immaterial and a de nial thereof did not raise an Issue of fact for trial. Gardner v. McWU llams 42 Or. 14, 17; Fleishman v. Meyer 46 Or. 267, 271; Casto v. Mur ray 47 Or. 57, 53. No error was com mitted In thus charging the Jury. It follows from these considera tions that the Judgment should be affirmed and It is so ordered. o DOWNWARD COURSE Fast Being Realized People. by Stlera A little backache at first. Dally Increasing till the back is lame and weak. Urinary disorders quickly follow; Diabetes and finally Brlght'a dis ease. This Is the downward course of kidney Ills. Don't take this course. Salem resi dents should profit by the following cAjerieuce. Mrs. e. C. Hattoa, Clay & Lisle Sts., Dallas, Ore., says; "In 1907 I publicly indorsed Doan's Kidney Pills and I now confirm that state ment. This remedy was used in my family and It brought relief from backache and other symptoms of kid ney trouble." For sale by all dealers. Price 50 cents. Foster-Mllburn Co., Buffalo, New York, solo agents for the Uni ted States. Remember the name Doan's and take no other. Why not permit the state lands to pay part of the state taxes? This can oe done by properly leasing and developing these lands, and an In come or several millions per year ad ded to the tax deposits. o How's This We offer One Hundred Dollars Re- wara ror any case of Catarrh that can uoi oe curea Dy Hairs Catarrh Cure F. J. CHENEY & CO., TnleHn D We, the undersigned, have known F. J. Cheney for the last IK VPnra and believe him perfectly honorable In all business transactions and finan cially able to carry out any obllga- .'"ub uiuua oy nis nrm. WALDING, KINNAN & MARVIN Wholesale Druggists, Toledo, O. Hall's Catarrh Cure Is taken inter nally, acting directly upon the blood aim mucous surrces or the syBtem. i wiuuiouiais sent free. Price 70c per oottie. sold by all druggists. Take Hall's Family Pills tor con stipation. o CASTOR I A For Infants and Children, Tha Kind You Have Always Bought Bears the rf .jr Signature of wCsvJV 4.11 Patent medicine or medicines ad wtlsed in th.s paper are for sale at DR. STONE'S Drug Store Salem, Oregon J Also Br. Stone's HEATE DROPS For the cure of Heares afflicting the horse. A liould merino the feed, which the most fastidious horse will not refuse to eat From one to six bottles given as directed will cur the most stubborn case. Price, J1.00 per bottle or six bot tles for $300. M NEWPORT Oregon's Popular Beach Resort An ideal retreat for outdoor pastimes of all kinds. Hunting, fishing, boat ing surf bathing, riding, autolng, canoeing, dancing and roller skating. Where pretty water agates, moss agates, moonstones, carnelians can be found on the beach. Pure moun tain water and the best of food at low prices. Fresh fish, clams, crabs and oysters, with abundance of veg etables of all kinds dally. Camping Grounds are c i with strict sanitary regulations LOW ROUND-TRIP from all points In Oregon, Wash ington and Idaho on sale dally 3-DAY SATURDAY-MONDAY TICKET from Southern Pacific points Port land to Cottage Grove; also from all C. & E. stations, Albany and west. Good going Saturday or Sunday and for return Sunday or Monday. Call on S. P. or C. & E. agent for fall particulars as to fares, train schedules, etc.; also for copy of our illustrated booklet, 'Outing in Ore gon," or write to WM. M'MURAY, General Passenger Agent, Portland, Ore. THMHHft44M4tttt4-ttTtHHr44MMMU I Morris' Cash Peed i! and Grocery Store Phone 1497 MAS0X FECIT JARS Pints 55c Quarts g5c One-half . gallon 904; Best Jar rubbers 2 packages 150 Extra choice Bacon lb 15c 17 lbs. fine Granulated Sugar $1.00 5 cans fine Table Peaches 50c 3 cans New Pack Oysters 25c 5 packages Best Corn Starch 25 3 cans String Beans g50 3 cans Extra Solid Pack Peas 80c 2 packages Arm AHammer Soda, full 1-lb. pkg 15c 3 cans Nice Salmon g50 Flour, per sack $1,10 5-lb. best Pure Lard g5c 10-lb. Best Pure Lard $155 FREE DELIVERY t liny Fever and Summer Colds Must be relieved quickly and Foley's Honey add Tar Compound will do it E. M. Stewart, 1034 Wolfram St., Chicago, writes: "I have been great ly troubled during the hot summer months with Hay Fever and find that by using Foley's Honey and Tar Compound I get great relief." Many others who suffer similarly will be glad to benefit by Mr. Stewart's ex perience. Foley's Honey and Tar Compound Is effective ror coughs and colds In either children or grown persons. No onlates. nn harmful drugs. In a yellow package. Re fuse substitutes. Red Cross Pharmacy, (H. Jerman.) PoVerty Is always hanging round waiting to hand itself to you. Call for Bids. ... ucicu, g'veu mat me common council of the city of Salem, Oregon, will receive and consider bids for the. Improvement of Front ,4l luo 01 oaiem, uregon, from the north line of Trade street to tha ftmirh Una n "TV 1. vU uu "i. XJ o LI cc I, WllU concrete pavement, according to the lilnna anA n . i m . i . ... ,j . 1'ttiuiauoDs adopted for Said imnrnvemnnt .n . e . , : F : io u u ciock p. m., July 24th, 1911. v The council reserves the right to reject any and all bids or waive all formalities In th. an.. . . iu i V . . """8 luereor, in the interests of the city. Dona hv nA. . ,7 . "l me common council of the city of Salem Oregon, ,,, CHAS. F. ELGIN. I18'-1 City Recorder. Salem's most poular res taurant THE WHITE HOUSE We cater to the public who demand a good meal for a wall price. ; Wm. McGilchrist & Sons. loiimostmoni be onl7 fract,on of tta re8ulUn :: "oButTfnr 2Stt4! that W6 pracUce B0 "economy- that' ItWtoluJwaSSd laTouewn? ,TSlble' Becond 0" est prices guaranteed. WlU like our Try it Low- . . SALEM STEAM LAUNDRY, Phone 4 ! H YAQUINA BAY Convenient and Attractive, t SEASON TICKET J Notice of Assessment. "Notice is hereby given that thi common council of the city of Salem, Oregon, will at or about 8 o'clock, k m on the 24th day of July, 1911, at the common council chambers at Sa lem, Oregon, proceed to asesas upon each lot or parcel of . land liable therefore its proportionate share of the cost of the improvement of Front street In the city of Salem, Oregon, from the South line of Trade street to the sotuh line ot "D" street, wittt concrete pavement, according to the plans and specifications adopted for said imnrovement office of the city recorder. All persons Interested in said as sessment shall appear at said time before said common council and pre sent objections, if any they have, to said assessment, and apply to said common council within five (6) dayi following said date for the privilege, If they so desire to make said im provement in lieu of their assess ment. Done by order of the common coun ?iLof.the cit of Salem, Oregon, ths 17th day of July, 1911. 7 19 It CHAS- P' ELGIN' 718"3t City Recorder. - o . Foley KIdnev Piiio ... in. Se5l LVU aIlrants and disorders tuo muneys ana bladder, because toey are rnmnnood 1 jjnHa specially selected for their correc tive, healing, tonic, and stimulating effect UDOn thoaa a .h. - na,7 Phages. They are antisep- w uU,ituic ana a uric acid solvent Try them. Gold Dust Flour Made by the 8YD.KT rOWU OOMPANI. 8,dr7, Ortgoa. Hde fcr Family Dm. Alk oar froew for it Iru P.B. WALLACE, Agt. 13A.1M flATTfimr v : ,TTT'""