Gray v. Reliable Ins. Co.

• Decision Date: 12 July 1910
• Parties: GRAY v. RELIABLE INS. CO.
• Court: Oklahoma Supreme Court

110 P. 728

26 Okla. 592, 1910 OK 218

GRAY v. RELIABLE INS. CO.

Supreme Court of Oklahoma

July 12, 1910

Syllabus by the Court.

A policy, providing that in case of loss the insured shall mail written notice to the home office at Oklahoma City within 48 hours after the hail occurred; that the company's adjuster, after receiving such notice, make an estimate of such loss, and shall send his written estimate of the same to the home office and mail or deliver a copy to the insured that, if the insured be not satisfied with such estimate, the amount of the loss may be ascertained by three competent appraisers, the assured and insurer each selecting one and the two so chosen selecting a third, and the finding of either two of them to be binding as to the amount of the loss; that, if within 20 days after such loss the insured has not received a copy of the estimate of the adjuster, then the insured shall, within 2 days after the expiration of the said 20 days, proceed in the same manner provided, in case he is not satisfied with the estimate of the company's adjuster, to have the amount of the loss determined by three competent appraisers; that suit may not be maintained unless notice of such loss is given and the amount thereof thus ascertained. It is further provided that in any event if the insured failed to send to the home office the amount of his premium note, etc., by registered mail, or if the amount of the said premium note be not so mailed, within 2 days after the expiration of the said 20 days, then the company shall not be liable to the assured for any amount. Held that a petition which sets out the policy, but contains no allegation of the giving of the notice or of any facts excusing a failure to do so, is demurrable as not stating a cause of action.

Section 9 of article 23 of the Constitution prevents the abridging of the time within which rights under the law may be enforced and the requiring by contract of any notice as a condition precedent to the maintaining of an action for a breach of duty imposed by law.

Error from Oklahoma County Court; Sam Hooker, Judge.

Action by A. Gray against the Reliable Insurance Company. Judgment for defendant, and plaintiff brings error. Affirmed.

Welty & Price, for plaintiff in error.

E. D Guffy and Parker & Simons, for defendant in error.

WILLIAMS J.

On the 12th day of September, 1908, plaintiff in error, as plaintiff, commenced his action against the defendant in error as defendant, in the county court of Oklahoma county declaring on a policy of insurance issued by the defendant on May 8, 1908, whereby it insured the plaintiff against all direct loss or damage by hail upon a certain 40 acres of wheat in Grant county, Okl., not to exceed $10 per acre, provided such loss equaled 5 per cent. of the wheat insured. A copy of said policy was attached to the petition. It was also alleged that on a certain date, after the issuance and delivery of said policy, hail fell upon said wheat and damaged it to the extent of 25 per cent., whereby plaintiff was damaged and suffered the loss of $100, payment of which he had demanded of defendant, but which defendant had refused and still failed and refused to pay or any part thereof. Certain paragraphs contained in said policy are in hæc verba:

"(5) If the insured be not satisfied with said estimate, then the amount of said loss by hail may be ascertained by three competent appraisers, the insured and this company each selecting one, and the two so chosen selecting the third one; the finding in writing of any two of them to be binding and final as to the amount of such loss, and the insured to pay one-half of the expense of appraisal, and the company the other half; provided, however, that the insured shall first, within two days after receiving said copy of the adjuster's estimate, send to the Oklahoma City office of the company by registered mail, the amount of his premium note (whether the same be then due or not), and a deposit of twenty dollars to be applied toward the payment of that half of the expense of appraisal for which the insured is liable. If there be any residue of the twenty-dollar deposit after the insured's half of the expense of appraisal has been paid, then, said residue shall be returned. If the insured fail to send to the Oklahoma City office of the company the amount of his said premium note and the said deposit of twenty dollars by registered mail, or if the amount of said premium note and the said deposit of twenty dollars be not so mailed within two days from the receipt, by the insured, of the said copy of the adjuster's estimate, then, and in either event, the said adjuster's estimate shall, upon approval by the president, or secretary of the company, be and become final and binding on the insured. No relative, and creditor, or neighbor, of the insured, nor any person who has sustained a loss by hail this year, or who has any interest in a crop covered hereby, shall be eligible as an appraiser.

"(6) If, within twenty days after the hail, the insured has not received a copy of the estimate of the company's adjuster, then the insured shall, within two days after the expiration of said twenty days, proceed as herein provided for cases in which the insured is not satisfied with the estimate of the company's adjuster; and with a view to having the amount of the loss determined by three competent appraisers chosen in the manner set out in paragraph 5. If in such event the insured fail to send to the Oklahoma City office of the company the amount of his premium note and the said deposit of twenty dollars, by registered mail, or if the amount of said premium note and the said deposit be not so mailed within two days from the expiration of said twenty days, then the company shall not be liable to the insured for any amount."

"(14) It is hereby expressly provided that no suit or action against this company for the recovery of any claim by virtue of this policy, shall be sustainable in any court of law or equity, unless the insured has given notice of loss within the time and in the manner herein required; nor unless the insured has complied with all other requirements of this policy; nor until sixty days after the award of appraisers has been rendered, if appraisal has been required; nor unless such suit or action shall be commenced within six months next after the alleged hail occurred."

Defendant demurred to plaintiff's petition on the ground that it did not state facts sufficient to constitute a cause of action, in that it did not aver or state facts showing that plaintiff had complied with the terms of paragraphs 5 and 6 of said policy, nor had the amount of the loss thereunder been ascertained in the manner therein provided. The said demurrer being sustained, the plaintiff, electing to stand upon said petition, declined to plead further. Judgment was rendered in favor of the defendant. Proper exceptions being saved and an appeal prosecuted to this court, such question is properly here for review.

It is insisted by counsel for the plaintiff in error that paragraphs 5 and 6 of said policy are void in that they are in violation of the express statute and contrary to public policy; specific reference being made to sections 814, 815, 818, Wilson's Rev. & Ann. St. 1903 (sections 1124, 1125, 1128, Comp. Laws Okl. 1909). Sections 814, 815, 818, supra are the same, respectively, as sections 3921, 3922, and 3925 of the Revised Code of North Dakota 1899 (sections 5367, 536...