Grau v. Northwestern Mut. Ins. Co.

• Decision Date: 13 April 1960
• Citation: 350 P.2d 1082,221 Or. 240
• Parties: Francie GRAU, Appellant, v. NORTHWESTERN MUTUAL INSURANCE COMPANY, a corporation, Respondent.
• Court: Oregon Supreme Court

Page 1082

350 P.2d 1082

221 Or. 240

Francie GRAU, Appellant, v. NORTHWESTERN MUTUAL INSURANCE COMPANY, a corporation, Respondent.

Supreme Court of Oregon, Department 2.

Argued March 9, 1960.

Decided April 13, 1960.

Glen McCarty, Portland, argued the cause for appellant. On the brief were McCarty & Rosacker, Portland.

Donald E. Hershiser, Portland, argued the cause for respondent. On the brief were Hershiser, McMenamin, Blyth & Jones, Portland.

Before McALLISTER, C. J., and WARNER, SLOAN and DUNCAN, JJ.

WARNER, Justice.

This is an action on an insurance policy covering a certain truck belonging to Francis Grau, the plaintiff, insuring against loss caused to the vehicle by collision or upset. From a judgment dismissing plaintiff's complaint, he appeals.

The case was tried to the court without a jury. Plaintiff makes but one assignment of error. He complains of the court's finding that the insurance company did not waive the provisions of its policy requiring plaintiff to make a proof of loss and argues that there was no substantial evidence to support such finding.

The provisions of defendant's policy pertinent to the issue read:

'To pay for direct and accidental loss of or damage to the automobile, hereinafter called loss, caused by collision of the automobile with another object or by upset of the automobile, * * *.

'When loss occurs, the named Insured shall: * * * (c) file proof of loss with the Company within sixty days after the occurrence of loss, unless such time is extended in writing by the Company, in the form of a sworn statement of the named Insured setting forth the interest of the named Insured and of all others in the properly affected, any encumbrances thereon, the actual cash value thereof at time of loss, the amount, place, time and cause of such loss, * * *.

'Payment for loss may not be required nor shall action lie against the Company unless, as a condition precedent thereto, the named Insured shall have fully complied with all the terms of this policy nor until thirty days after proof of loss is filed and the amount of loss is determined as provided in this policy.'

On December 17, 1956, the policy then being in force, the insured's vehicle, a Ford truck, was damaged while being driven by plaintiff's brother. It was at the time heavily loaded with pulp wood and as a result of the accident the wood was spread across the highway. Plaintiff, upon being notified to the accident, promptly accompanied a wrecker to the place of the mishap in order to remove the wood from the right of way. When he arrived at the scene, plaintiff merely asked his brother, 'How did it happen?' to which the driver replied, 'The U-Bolts broke.' Because of the urgency for the removal of the wood from the highway, plaintiff did not then further interrogate his brother.

The next morning, without further inquiry of the driver, or without other investigation concerning the circumstances of the accident, plaintiff went to the office of defendant's agent, in St. Helens, Oregon, and made out and signed a notice of loss on a company form supplied by the agent. The material facts in this notice embody the same matter included in his statement made later to the company adjuster. In the afternoon of the same day, defendant sent its adjuster, Mr. Burton, who met plaintiff at the Ford garage, in St. Helens, to which the truck had been removed. After examining the truck, the investigator prepared a statement based upon the information then supplied and thereafter had it signed by plaintiff.

In so far as it relates to the cause of loss, this reads:

'* * * My brother * * * came up the approach to Cornelius Pass Road and then stopped for the stop sign. As he started up, he turned the truck to the right. When he turned to the right, the U clamps, which hold the box frame to the truck frame, sheared off and let the bed down on the dual wheels. The wheels were turning and when the box dropped on the wheels the box was shoved against the cab of the truck. When the box, loaded with wood, struck the cab, the box fell off the truck, and was damaged. The dual drive of the truck was damaged but the extent of damage is unknown at this time * * *.'

After the foregoing had been signed, the adjuster told the plaintiff that the damage was not covered by the policy, as the accident was merely one where a part of the truck collided with another of its parts rather than with another object as stipulated in the policy.

It is this advice denying liability by the investigator upon which the plaintiff depends as excusing himself from the necessity of thereafter filing a formal proof of loss with the insurance company. It is his position that the denial of liability by the investigator was in law a waiver on the part of the company of the proof of loss required by the policy.

Subsequent consultation with the truck driver, about three or four days, perhaps a week, later, disclosed to the plaintiff for the first time that the 'U' bolts had broken because of strain resulting from an 'upsetting' of the truck rather than a shearing of the 'U' bolts caused by the weight of the truck's cargo or weakness of the bolts. Plaintiff, however, never informed the defendant of these new and additional facts, but, instead, on January 10, 1957, filed his complaint in this matter, alleging that the truck was damaged by an 'upset' within the meaning of the policy. It will be noticed that when he filed his complaint he still had ample time to have first made a proof of loss, setting forth the later obtained information concerning what he now represents to be the true circumstances of the accident.

Defendant filed an answer with an affirmative defense based on the failure of the plaintiff to file a proof of loss as required by the policy. Plaintiff replied, alleging a waiver of that requirement.

The court found that the vehicle was damaged by an 'upset' within the meaning of the policy and that the defendant denied the loss, basing its denial, however, upon the facts of the accident as reported by the plaintiff to its adjuster and, as so reported, they failed to show the loss within the terms of the policy. The court, therefore, concluded that the defendant had not under the circumstances waived the required proof of loss.

We have held that when the provisions of an insurance policy declare that the giving of notice of loss and the making of proofs of loss within a certain time are conditions precedent, as does the policy here sued upon, the insured must comply before bringing an action against the insurer. Hoffman v. Employer's Liability Corp., 146 Or. 66, 72, 29 P.2d 557; Canadian Indemnity Co. v. State Automobile Ins. Ass'n, D.C.Or.1959, 174, F.Supp. 71, 80. See, also, Bennett...