Prudential Fire Ins. Co. v. Trave-Taylor Co.

• Decision Date: 10 October 1944
• Docket Number: 30922.
• Citation: 152 P.2d 273,194 Okla. 394,1944 OK 272
• Parties: PRUDENTIAL FIRE INS. CO. v. TRAVETAYLOR CO.
• Court: Oklahoma Supreme Court

152 P.2d 273

194 Okla. 394, 1944 OK 272

PRUDENTIAL FIRE INS. CO. v. TRAVETAYLOR CO.

No. 30922.

Supreme Court of Oklahoma

October 10, 1944

Syllabus by the Court.

1. Where an insurer does not deny liability under a policy but requests time in which to have experts examine the property alleged to have been damaged in order to ascertain the extent of the damage done thereto and consumes approximately the entire period in which institution of an action on the policy is required to be instituted the insurer will be held to have waived the limitation provision of the policy for a reasonable time after denial of the liability thereunder.

2. Where there is evidence upon which a verdict for the plaintiff can be sustained it is not error to overrule a demurrer thereto, and likewise it is not error to overrule motion for directed verdict.

Appeal from District Court, Oklahoma County; Lucius Babcock, Judge.

Action by the Trave-Taylor Company against the Prudential Fire Insurance Company to recover on a fire policy. Verdict and judgment for plaintiff and defendant appeals.

Affirmed.

Ames Monnet, Hayes & Brown, of Oklahoma City, for plaintiff in error.

Butler & Rinehart, of Oklahoma City, for defendant in error.

PER CURIAM.

This action was instituted by the defendant in error, hereinafter referred to as plaintiff, against the plaintiff in error hereinafter referred to as defendant, to recover under the terms of a standard form fire insurance policy for damage to lithographic engraving stones alleged to have been caused by fire.

The policy under which plaintiff based its right to recovery contained the following provision: "No suit or action on this policy, for the recovery of any claim, shall be sustainable in any court of law or equity until after full compliance by the insured with all the foregoing requirements, nor unless commenced within 12 months next after the fire."

The fire occurred on April 7, 1940, and the action on the policy was not instituted until June 6, 1941. The plaintiff in avoidance of the limitation provision above quoted plead that defendant had through its adjuster led the plaintiff to believe at all times until April 8, 1941, that the loss would be paid as soon as the extent thereof could be determined and the adjuster had requested time in which to have experts examine the injured property and to ascertain the extent of damage done thereto and had taken until the latter part of March, 1941, to have such examination made and that the experts did not complete their examinations in time to afford plaintiff an opportunity to institute the action within the limitation period provided in the policy and that defendant had never advised or informed plaintiff that it intended to deny liability but had at all times led plaintiff to believe that the only issue was the amount of loss and that by its conduct defendant had waived the limitations and had estopped itself to plead the same as a bar to the action. The answer of the defendant consisted of a general denial and a plea of the limitation provision of the policy as a bar to the action of plaintiff. Upon the issues so framed trial was had to a jury.

The evidence adduced disclosed, in substance, that the defendant had issued a policy of insurance upon the property involved insuring against loss by fire in the amount of $10,000; that the property had been involved in a fire which occurred on April 7, 1940, and that defendant had employed an adjuster to investigate and adjust the loss if possible; that defendant neither expressly admitted nor denied the liability but that the adjuster employed by it informed the plaintiff that he was not in position to determine the amount of loss and he would like to have experts examine the property and ascertain the extent of damage thereto; that plaintiff consented to such course of conduct and that the adjuster employed several experts who did not complete their investigation until the latter part of March, 1941, when they reported that in their opinion the property had sustained no appreciable damage as a result of the fire and that this information was not communicated to the plaintiff until after the period in which an action on the policy might have been instituted had expired; that plaintiff instituted the action shortly thereafter. Demurrer to the evidence of plaintiff was overruled and motion of defendant for directed verdict in its favor was likewise overruled. The jury returned a verdict in favor of plaintiff and assessed its recovery at the sum of $5,000. Motion for new trial was overruled and defendant has perfected this appeal.

Defendant makes but two contentions for reversal of the judgment. The contentions so made are, in substance, that the demurrer to the evidence of plaintiff should have been sustained and the motion of defendant for directed verdict at the close of all of the evidence should have been sustained.

The first contention of defendant is based upon the fact that the action was admittedly not instituted within 12 months next after the fire and that, since the evidence does not reveal that defendant was guilty of any active misrepresentation or any fraud, that there exists no estoppel and hence the action being barred by the limitation provision, demurrer of the defendant to the evidence of the plaintiff should have been sustained. The defendant reasons that waiver is necessarily based on some element of estoppel and that, since some act of fraudulent character is essential to the creation of estoppel, there could...