Gilbert v. Globe & Rutgers Fire Ins.

174 P. 1161, 91 Or. 59, 3 A.L.R. 205, 1918 Ore. LEXIS 229

• Court: Oregon Supreme Court
• Decided: September 17, 1918
• Status: Published

Opinions

JOHNS, J.

We have twice carefully read the record. The plaintiff met the adjuster of the defendant at the scene of the fire, for the purpose of investigating and adjusting the amount of the loss, in going to and from which place he traveled 250 miles. It is very apparent from the record that the sole and only object of the plaintiff in meeting the adjuster at Gearhart was to ascertain and determine the amount of the loss, with a view of making the necessary proofs; otherwise, he would not have gone to the expense and trouble of making the trip.

The policy was for $1,200; the adjuster found that the loss was $1,531, hence the amount of the loss was adjusted. It is maintained that the plaintiff did not make any actual “proof of loss” as required by the terms and conditions of the policy. There is no evidence that the plaintiff ever requested or that the defendant ever furnished him any blanks for his “proof of loss.” Fair dealing and business courtesy required that the defendant should aid and assist, rather than mislead and deceive him in the making of his “proof of loss,” and it is very clear that the adjuster, Shankland, was far more interested in having the garnishee process of the Astoria Box and Lumber Company served on the defendant than he was in aiding and assisting the plaintiff; otherwise, there never would have been any question about such proof. But under the view that we have taken of this case, all such considerations become immaterial. The testimony shows that the plaintiff read over and knew the terms and conditions of the policy at the time of its receipt and it expressly provides that any action must be brought “within twelve months next after the fire.” The fire occurred on October 2, 1912; this action was commenced on June 29,1916. The authorities are uniform in holding that a time limitation in which such an action shall be brought is valid if the time is reasonable, and that a twelve months’ limitation is reasonable.

The plaintiff alleges in his complaint that one year after the fire the defendant “then refused to make said settlement for said loss, or any part of said sum of $1,200 absolutely”; and that “relying upon the alleged promises and by reason thereof, he did not bring his action within the twelve months; that the defendant ought not now to be permitted to say that this action was not commenced within the time limited by said policy.” In substance, he makes the same allegations in his reply and as a witness he testifies to a conversation with the adjuster, Shankland, in the fall of 1913, in which the adjuster told him that he did not have any right to bring action, that he had lost his right if he ever had one; and also that up to the time of that conversation with Shankland in Portland in October, 1913, he relied upon the promises of the defendant that the policy would be paid when the garnishment proceedings were adjusted. Hence the plaintiff alleges in both his complaint and reply, and as a witness testifies, that at or about the time the year expired, he knew and was advised by the company that it denied all liability and would contest his claim, yet he did not commence his- action until at least two years and eight months after he received that information. In the face of such allegations and proof, we are of the opinion that when he acquired such knowledge he could not thereafter rely, and did not rely, upon such alleged promises or representations of the company. The plaintiff has not shown or alleged any excuse or reason for not bringing his action within a reasonable time after he received the information, on or about October 2, 1913, that his claim would be contested, or why he delayed bringing his action until June 29,1916.

1, 2. Assuming that the defendant was estopped to plead the time limitation, the estoppel was removed when the plaintiff was notified that the defendant denied liability and would contest his claim, and upon receipt of such notice the plaintiff then had a reasonable time within which to commence his action: David v. Oakland Home Ins. Co., 11 Wash. 181 (39 Pac. 443); Phillips v. Union Central Life Ins. Co., 101 Fed. 33. The action was commenced on June 29, 1916, and under the facts disclosed by the record we hold as a matter of law that it was not commenced within a reasonable time after the defendant notified the plaintiff that it would contest his claim and deny liability, and for such reason the court should have directed the jury to return a verdict for the defendant. This decision is founded upon a contract and is not in conflict with, and is to be distinguished from, the opinion of Mr. Justice Benson in the case of Hood v. Seachrest, 89 Or. 457 (174 Pac. 734), which was founded upon the statute.

3. It is also shown by the record that the garnishee process was still pending at the time the action herein was commenced, and under the authority of Ripley v. Aetna Ins. Co., 30 N. Y. 136 (86 Am. Dec. 362), the fact that the defendant had been garnished and that by reason thereof it would not settle the loss while that pi’ocess was pending did not amount to a waiver of the time limitation in the policy, and the defendant would not be estopped. The judgment of the Circuit Court is reversed and the action is dismissed.

.Beversed and Dismissed.

Rehering denied February 11, 1919.