Neher v. Western Assurance Co.

Root, J.

(dissenting) — I am unable to concur in the conclusion reached by the majority of the court. Respondent bases bis action upon the policy which he received. He alleges said policy to be his contract with the insurance company. If it is, 'it necessarily follows that he is bound by its terms. Said policy either is, or is not, the contract of insurance entered into by and between appellant and respondent. If it is the contract, it is binding upon both of them. If it is not said contract, then respondent cannot maintain this action upon it. He ought not to be beard to say that it is the contract for one purpose and not the contract for another purpose. The law, ordinarily, does not permit a party to “blow both hot and cold.” If appellant did not give respondent a policy in accordance with the agreement, if any, which they made for insurance, then respondent should sue on the agreement, not on this policy. However, there is no allegation of any agreement or contract for insurance except this policy.

Respondent is a business man. If a policy holder were an infant, or feeble minded person, or woman unaccustomed to business matters, there might be some excuse for not holding him or her to the terms of the contract, the policy. But why a court should put a business man of ordinary intelligence in the category of weaklings for whom the law must act as guardian, I am unable to understand. A party, legally capable of making a written contract, who becomes a party thereto, is presumed by law to know its contents. Oan this court suppose that a business man of ordinary intelligence would not know that his policy contained the provisions spoken of ? It was his legal duty to read his policy — to know what it contained. What are written contracts for? If a party may escape the obligations of one kind of a written contract, to which he is a party, by saying he never read it and didn’t know its contents, why may he not likewise escape the binding force of any written contract? Let it be re>tnembered that this is not a case of “overreaching.” No fraud, deception or sharp practices are alleged. The policy *161is in the usual form. It was delivered to respondent. He had it in his possession from date of issue until the fire, about two weeks. It was the only contract of insurance existing between them. If respondent did not read it, appellant is certainly not to blame for such neglect. Respondent gets the policy and, by keeping it without any protest, justifies appellant in supposing that it was satisfactory. It seems to me that his conduct constituted a legal acceptance of the policy. Were it a written contract with anybody other than, an insurance (or kindred) company, how would respondent’s attempt to> avoid its terms be regarded ? There being an absence of fraud, deception, misrepresentation, and “overreaching,” it is not apparent why this case should not be controlled by principles applicable to written contracts.

This court has frequently held, even in cases of actual misrepresentation, that a party defrauded would not be given relief where he might have protected himself by the use of his natural faculties. Hulet v. Achey, 39 Wash. 91, 80 Pac. 1105; Washington Cent. Imp. Co. v. Newlands, 11 Wash. 212, 39 Pac. 366; Walsh v. Bushell, 26 Wash. 576, 67 Pac. 216; Griffith v. Strand, 19 Wash. 686, 51 Pac. 613; Sherman v. Sweeny, 29 Wash. 321, 69 Pac. 1117. In Washington Cent. Imp. Co. v. Newlands, supra, this court, among other things, said:

“If people having eyes refuse to open them and look, and having understanding refuse to exercise it, they must not complain, when they accept and act upon the representations of other people, if their venture does not prove successful. Written contracts would become too unstable if courts were to annul them on representations of this kind.”

This extract was quoted with approval in three of the other cases just cited. I think it still good law. But I see no way of reconciling the doctrine of those eases with that announced in the majority opinion herein. Here, a mere reading of the policy would have informed respondent all about its terms, *162and nobody prevented Mm from reading it. It was simply neglect on his part. To allow him to recover is, in my opinion, to recognize a proposition at variance with well established principles of law.