Egan v. Oakland Home Ins. Co.

• Citation: 42 P. 990,29 Or. 403
• Parties: EGAN v. OAKLAND HOME INS. CO.
• Decision Date: 23 December 1895
• Court: Supreme Court of Oregon

42 P. 990

29 Or. 403

EGAN v. OAKLAND HOME INS. CO.

Supreme Court of Oregon

December 23, 1895

Appeal from circuit court, Multnomah county; E.D. Shattuck, Judge.

Action by B.F. Egan against the Oakland Home Insurance Company. Judgment for defendant. Plaintiff appeals. Affirmed.

Chas H. Carey, for appellant.

W.E Thomas, for respondent.

BEAN, C.J.

The alleged liability of the defendant rests upon a fire insurance policy issued by it covering the property of plaintiff's assignor, and the only question presented by the appeal is the proper construction of the following provisions thereof: "The loss shall not become due and payable until 60 days after satisfactory proof of the loss herein required has been received by this company, including an award by appraisers when appraisal has been required. *** No suit or action on this policy for the recovery of any claim shall be sustained in any court of law or equity until after full compliance by the insured with all the foregoing requirements, nor unless commenced within 6 months next after the fire shall have occurred." The fire occurred on August 17, 1893, and this action was not commenced until March 15, 1894, only 2 days short of 7 months thereafter. There is no claim made that the delay was caused by the action or nonaction of the defendant company, or that it occurred by reason of any dispute or proceedings by arbitration concerning the amount of the loss, or that a reasonable time did not remain after the loss became due and payable in which to bring the action; but the simple question here presented is whether the time, as limited by the policy commenced to run at the date of the fire, or at the time the loss was ascertained and became due and payable. It is admitted that the clause of the policy limiting the time in which an action may be commenced thereon is valid and binding, but the contention for plaintiff is that, when construed in connection with the other provisions in the policy, and especially the one providing that the loss shall not become due and payable until 60 days after proof thereof has been furnished to the company, it shows an intention to give him 6 months after the right to sue accrued in which to bring the action.

At the outset it is important to observe that, under the wording of the clause in question, the 6 months begin to run from "the time the fire shall have occurred," and not from the time "the loss or damage shall have occurred," or "after the loss," or "after the loss or damage," as in most of the cases cited and relied upon by plaintiff. The latter phrases have been construed by some of the courts to mean that the limitation shall be computed from the time the amount of the loss is ascertained and payable, and the assured's right to bring an action accrues, and not from the time of the happening of the loss. Steen v. Insurance Co., 89 N.Y. 315; Hay v. Insurance Co., 77 N.Y. 235-242; Insurance Co. v. Jones, 54 Ark. 376, 15 S.W. 1034; Barber v Insurance Co., 16 W.Va. 658; Murdock v. Insurance Co., 33 W.Va. 407, 10 S.E. 777; Chandler v. Insurance Co., 21 Minn. 85; Spare v. Insurance Co., 17 F. 568; Vette v. Insurance Co., 30 F. 668; Insurance Co. v. Fairbank, 32 Neb. 750, 49 N.W. 711; Ellis v. Insurance Co., 64 Iowa, 507, 20 N.W. 782; Miller v. Insurance Co., 70 Iowa, 707, 29 N.W. 411. But other courts, of equal weight and respectability, have construed such phrases to mean that the assured's right of action must be computed from the date of the happening of the loss, and not from the time the insurer is required to pay. Travelers' Ins. Co. v. California Ins. Co., 1 N.D. 151, 45 N.W. 703; Fullam v. Insurance Co., 7 Gray, 61; Johnson v. Insurance Co., 91 Ill. 92; Chambers v. Insurance Co., 51 Conn. 17; Glass v. Walker, 66 Mo. 32; Bradley v. Insurance Co., 28 Mo.App. 7; Insurance Co. v. Wells, 83 Va. 736, 3 S.E. 349; Blanks v. Insurance Co., 36 La.Ann. 599; Lentz v. Insurance Co., 96 Mich. 445, 55 N.W. 993; Garido v. Insurance Co. (Cal.) 8 Pac. 512. Other cases, bearing more or less directly on the question, could be cited on either side of the proposition, but reference is made to a sufficient number to show that it can hardly be said that the weight of authority is with either contention. The courts which hold that the limitation commences to run at the time the loss is ascertained and payable, and not from the date of the happening of the loss, do not agree as to the reasons for so deciding, but they seem generally to base their decisions upon the ground that the limitation clause, when taken in connection with the stipulation in the policy giving the insurer a certain time after proofs of loss in which to pay, is inconsistent, ambiguous, and uncertain, and therefore should be construed more strongly in favor of the insured. But in the case before us there is, in our opinion, no room for construction. The stipulation is plain and unambiguous, and susceptible of but one meaning, and unless we are to disregard entirely the plain and obvious meaning of the language used, we must hold that the phrase, "next after the fire shall have occurred," means from the date of the fire, and not 60 days, or some other time, thereafter. It is undoubtedly true that an insurance policy, like other contracts, should be so construed as to effectuate the intention of the parties, and that if any of its terms or conditions are ambiguous, they should be construed most strongly against the insurer; but the courts have no right by construction to disregard the plain provision of a contract as made by the parties, or to hold that it means one thing when it says another. Some of the courts which construe the phrase "after the loss" to mean after the loss is ascertained, and the right to sue exists, proceed

on the assumption that there is no material difference between such a phrase and "after the fire," and have construed it in the same way. Steel v. Insurance Co., 2 C.C.A. 463, 51 F. 715; Friezen v. Insurance Co., 30 F. 352; Case v. Insurance Co., 83 Cal. 473, 23 P. 534; Hong Sling v. Insurance Co., 8 Utah, 135, 30 P. 307. And the following cases, although construing life insurance policies, may be said to hold to the same effect: McConnell v. Association, 79 Iowa 757, 43 N.W. 188; Matt v. Association, 81 Iowa, 135, 46 N.W. 857; Allibone v. Casualty Co. (Tex.Civ.App.) 32 S.W. 569. But we cannot assent to the doctrine of these cases. It seems to us that if "after the loss" means 60 or any other number of days after the happening of the loss, there is a material difference in the two phrases. As so construed, the one fixes, as the period at which the limitation shall commence, the time the loss is ascertained and payable, and the other, in distinct and unequivocal language, the time of the fire, which is certainly a different event. In one of the leading cases holding the doctrine contended for by the plaintiff ( Steen v. Insurance Co., 89 N.Y. 315), Danforth, J., says: "No doubt the appellant could have stipulated that the time of the fire should be looked to as the event from the happening of which the limitation should run, but it would require distinct language to show that such was the intention of the parties. It is not used here. It is found in Schroeder v. Insurance Co., 2 Phila. 286, one of the cases cited by the appellant." And in the subsequent case of King v. Insurance Co., 47 Hun, 1, the supreme court of New York held that, under a clause in an insurance policy providing that no action or suit shall be maintained unless ...