Hefner v. Great Am. Ins. Co.
| Decision Date | 12 September 1923 |
| Docket Number | 17756. |
| Citation | 218 P. 206,126 Wash. 390 |
| Parties | HEFNER v. GREAT AMERICAN INS. CO. |
| Court | Washington Supreme Court |
Department 1.
Appeal from Superior Court, King County; A. W. Frater, Judge.
Action by Martin G. Hefner against the Great American Insurance Company. From an order granting plaintiff a new trial after nonsuit, defendant appeals. Reversed and remanded, with directions.
Cosgrove & Terhune, of Seattle, for appellant.
Vince H. Faben, of Seattle, for respondent.
The plaintiff sues as assignee of any cause of action existing in favor of the Bremerton Ice & Fuel Company against the defendant, Great American Insurance Company, on account of a loss at sea of a barge of coal covered by a policy of marine insurance issued by the defendant. Upon the trial of the case by a jury, at the conclusion of the evidence on behalf of the plaintiff, a nonsuit was ordered and the jury discharged upon the motion of the defendant. Promptly, upon the application of the plaintiff, a new trial was granted, and from that order the defendant has appealed.
On behalf of the appellant the case is presented in three aspects, only one of which need be discussed for the purpose of a final disposition of the case. That one point is that the action was not commenced within one year after the loss occurred as provided for by the terms of the contract of insurance. It is a question of law, and not one of fact appealing to the discretion of the court that granted the new trial. The respondent was apprised of the defense by an affirmative answer to the complaint and also by the motion for a nonsuit. The policy provides:
'No suit or action for the recovery of any claim arising under this policy shall be maintained in any court, unless such suit or action shall have been commenced within one year from the date of the happening of the loss out of which the said claim arose.'
We have uniformly held that a clause in such a contract fixing a limitation of the time in which suit is sustainable is a valid one. Staats v. Pioneer Insurance Association, 55 Wash. 51, 104 P. 185, and cases cited therein, which case and others are cited and relied on in Shaw Supply Co. v Charles Nelson Co. (Wash.) 214 P. 19. The loss occurred on October 31, 1919. It was promptly reported by the Bremerton Ice & Fuel Company to its own agent, the firm of brokers through whom the insurance had been procured, and not to the insurance...
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