State Insurance v. Meesman , 2 Wash. 459 ( 1891 )

The opinion of the court was delivered by

Anders, C. J.

— This is an action upon a fire insurance policy issued by appellant to appellee to recover a loss amounting to §221, alleged to have been sustained by appellee by reason of the destruction by fire of the property insured. The complaint was filed February 3, 1890, and service duly made. Defendant appeared and answered, setting up as a defense false representations made by plaintiff to defendant in his application for insurance, concerning his title to the land upon which the insured buildings were situated j and that, by the terms of the policy, action should be commenced thereon, if at all, within six months after the date of the fire. Plaintiff, in his reply, denied making any false representations, or that he knew any statements or representations contained in his said application were false or untrue; and alleged that at the time of making application for the policy of insurance he fully and truly explained to the agent of the defendant who received said application the true nature of his right and title in and to said land; and that said agent thereafter filled out said application, and plaintiff signed the same in good faith, and relying upon and believing the statement of said agent then and there made to plaintiff that the said application was right and in proper form. Plaintiff further alleged that his loss was adjusted by and between himself and the defendant on the 8th day of August, 1889, at $221. The issues having been thus joined, the case was tried by a jury, who returned a verdict in favor of the plaintiff for the sum claimed in the complaint. A motion for a new trial having been denied, judgment was entered in favor of the plaintiff and against defendant for the amount specified in the verdict. Defendant brings the case to this court for review, and seeks a reversal of the judgment for errors duly assigned.

Counsel for appellant contend that the action is barred by limitation fixed in the policy for bringing the action; and, in order to determine that question, it becomes necessary to examine the contract as made by the parties thereto. Among the provisions in the policy are the following:

“It is hereby expressly covenanted and agreed by the parties hereto that no suit or action against this company for the recovery of any claim under and by virtue of this policy shall be sustained in any court of law or chancery unless such suit or action shall be commenced within six months after the time the fire shall have occurred; and in case any such suit or action shall be commenced against this company after the expiration of the aforesaid six months, the lapse of time shall be taken and admitted as conclusive evidence against the validity of such claim, any statute of limitation to, the contrary notwithstanding.

“All persons having a claim under this policy for loss or damage shall proceed at once to put the property saved or damaged in the best order possible, separating the damaged from the undamaged, and shall give immediate notice, and render a particular account thereof, in writing, to the company, stating the time, origin and circumstances of the fire, the occupancy of the building insured or containing the property insured at the time of the loss, the whole value and ownership of the property insured, and all encumbrances j all of which shall be verified by the affidavit of the assured and claimant. If required, the assured and claimant shall be examined and re-examined under oath by any person appointed by the company, at such time or times and place or places, in the county where the loss occurs, as the company or such persons may require, touching all questions relating to the claim, and shall subscribe to the same; and until such examination (if required) shall have been submitted to, subscribed and verified as herein specified, the company shall not be called upon to consider such claim or loss, nor shall the same become due and payable ; o „ . Provided, further, That it shall be optional with the company to repair, rebuild or replace the property lost or damaged with other of like kind and quality within a reasonable time, giving notice of their intention so to do within sixty days after receipt of proofs herein required; and, in case the company elect to rebuild, the assured shall, if required, furnish plans and specifications of the buildings destroyed.

u In case of any differences of opinion as to the amount of loss or damage, such differences may be submitted to the judgment of two disinterested and competent men mutually chosen (who, in case of disagreement, shall select a third), whose award shall be conclusive and binding on both parties as to the amount only.”

The fire occurred on July 31,1889. On August 8,1889, the agents of the company went to the plaintiff to determine the amount of his loss. The plaintiff testified, “My loss was adjusted at $221;” and this was not disputed by the agents themselves when called as witnesses on the part of the defendant. They did not agree that the loss would be paid, but at most, only promised to do the best they could for plaintiff. On August 13, 1889, howe'" secretary of the insurance company wrote a letter to the plaintiff, in which he said:

“We cannot see that you have any claim against this company for your loss, and must therefore decline to give the matter further consideration.”

As before stated, plaintiff commenced this action on February 3, 1890, which was six months and three days after the fire occurred. It is not claimed by counsel for appellee that the limitation of time expressed in the policy for the commencement of an action for the loss sustained is invalid, and, so far as we have been able to ascertain from an examination of adjudicated cases, such stipulations have been uniformly held valid and binding. But counsel contend that plaintiff could not have maintained an action against the company until August 13, 1889, at which time the company refused to pay the loss, and that the action was therefore commenced in time, although more than six months had elapsed since the happening of the fire. In other words, appellee claims that the time of limitation did not commence to run at the date of the fire, but at the time when the cause of action accrued, and that all of the provisions of the policy, taken together, warrant that construction. Numerous authorities are cited in support of appellee’s contention. The decisions in these cases are based upon the assumption that the provision in the policy postponing a right of action until proof of loss is made, or until a certain number of days thereafter, is in conflict with the provision limiting the time within which an action may be commenced, and that these stipulations must therefore be harmonized by judicial construction. We cannot assent to this doctrine. The most careful reading of the provisions and stipulations in the policy nosUjefore us will fail to disclose any conflict therein, j"^kase at bar every stipulation in favor of the company was waived, excepting that providing for the proof of loss. After adjustment of the loss, and the waiver of all other conditions, appellee still had five and one-half months of the stipulated time remaining. No excuse or reason is given by him for his procrastination j and yet we are now called upon to sustain the action, notwithstanding the delay in bringing it until after the contract limitation had expired, upon the ground that the contract really means something different from what it says. The parties stipulated that no action upon the policy “shall be sustained unless commenced within six months after the time the fire shall have occurred/5 and that “the lapse of time shall be taken and admitted as conclusive evidence55 against the validity of any claim against the company. This language is certainly plain and unambiguous. The other stipulations simply provide that no action shall be commenced until certain things therein specified shall have been done; and the evident meaning of the whole contract is that no action shall be commenced before the doing of these things, nor, in any event, after the lapse of six months. This construction gives full force and effect to every stipulation and provision in the policy, and does violence to none. But it is urged by counsel for appellee that, inasmuch as the company has secured itself against being sued immediately on the occurrence of the loss, it must be presumed not to have been the intention of the parties to suspend the remedy, and at the same time to provide for the running of the period of limitation. We are unable to perceive, however, how any such presumption can arise without, in effect, substituting another and different contract for the one made by the parties. It was but natural and reasonable for the insurance company to protect itself against the cost and annoyance of an action until it could have an opportunity to investigate the circumstances attending the fire by which the loss occurred, and ascertain its liability, and determine whether to replace the property or pay the loss, or to refuse to pay it, if satisfied of the unjustness of the claim; and appellee, having consented to such a stipulation, should not now, in our opinion, be heard to object that the company thereby waived or extended the limitation of time for bringing an action. It is proper to remark, in passing, that this policy differs essentially in the provision respecting the limitation of actions from most, if not all, of those in controversy in the cases cited by appellee. In most of those cases a period of sixty days was reserved after proof of loss, before the expiration of which no action could be commenced. And in the leading case of Steen v. Insurance Co., 89 N. Y. 315 (42 Am. Rep. 297), cited by appellee, Daneorth, 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. Keystone Insurance Co., 2 Phila. 286, one of the cases cited by the appellant.”

In the policy before us we have almost identically the same “distinct language” that was used in the policy in the Schroeder case, and it is impossible to give it any different construction from the one there adopted. The following cases also support the view we take of this question: King v. Watertown Fire Ins. Co., 47 Hun, 1; Travelers' Ins. Co. v. California Ins. Co. (N. D.), 45 N. W. Rep. 703; Bradley v. Phœnix Ins. Co., 28 Mo. App. 7; Johnson v. Humboldt Ins. Co., 91 Ill. 92 (33 Am. Rep. 47); Fullam v. Ins. Co., 7 Gray, 61 (66 Am. Dec. 462); Thompson v. Phœnix Ins. Co., 25 Fed. Rep. 296; Ins. Co. v. Wells, 83 Va. 736 (3 S. E. Rep. 349); Tasker v. Ins. Co., 58 N. H. 469.

Holding, as we are constrained to do, that the action is barred by the lapse of time, it is not necessary to examine the other objections raised by appellant. The judgment of the court below is reversed, and the action dismissed.

Scott, Hoyt, and Stiles, JJ., concur.