42 P. 990 | Or. | 1895
The alleged liability of the defendant rests upon a fire insurance policy issued by it covering the property of the plaintiff's assignor, and the only question presented by the appeal is the proper construction of the following provisions thereof: "The loss shall not become due and payable until sixty days after satisfactory proof of the loss herein required has been received by this company, including an award by appraisers when appraisal has been required. * * * No suit or action on this policy for the recovery of any claim shall be sustained in any court of law or equity until after full compliance by the insured with all the foregoing requirements, nor unless commenced within six months next after the fire shall have occurred." The fire occurred on August seventeenth, eighteen hundred and ninetythree, and this action was not commenced until March fifteenth, eighteen hundred and ninety-four, only two days short of seven months thereafter. There is no claim made that the delay was caused by the action or nonaction of the defendant company, or that it occurred by reason of any dispute or proceedings by arbitration concerning the amount of the loss, or that a reasonable time did not remain after the loss became due and payable in which to bring the action; but the simple question here presented is whether the time, as limited by the policy, commenced to run at the date of the fire, or at the time the loss was ascertained and became due and payable. It is admitted that the clause of *405
the policy limiting the time in which an action may be commenced thereon is valid and binding, but the contention for plaintiff is that, when construed in connection with the other provisions in the policy, and especially the one providing that the loss shall not become due and payable until sixty days after proof thereof has been furnished to the company, it shows an intention to give him six months after the right to sue accrued in which to bring the action. At the outset it is important to observe that, under the wording of the clause in question, the six months begin to run from "the time the fire shall have occurred," and not from the time "the loss or damage shall have occurred," or "after the loss," or "after the loss or damage," as in most of the cases cited and relied upon by plaintiff. The latter phrases have been construed by some of the courts to mean that the limitation shall be computed from the time the amount of the loss is ascertained and payable, and the assured's right to bring an action accrues, and not from the time of the happening of the loss: Steen v. Niagara Fire Insurance Company,
Other cases bearing more or less directly on the question could be cited on either side of the proposition, but reference is made to a sufficient number to show that it can hardly be said that the weight of authority is with either contention. The courts which hold that the limitation commences to run at the time the loss is ascertained and payable, and not from the date of the happening of the loss, do not agree as to the reasons for so deciding, but they seem generally to base their decisions upon the *407
ground that the limitation clause, when taken in connection with the stipulation in the policy giving the insurer a certain time after proofs of loss in which to pay, is inconsistent, ambiguous, and uncertain, and therefore should be construed more strongly in favor of the insured. But in the case before us there is, in our opinion, no room for construction. The stipulation is plain and unambiguous, and susceptible of but one meaning, and, unless we are to disregard entirely the plain and obvious meaning of the language used, we must hold that the phrase, "next after the fire shall have occurred," means from the date of the fire, and not sixty days or some other time thereafter. It is undoubtedly true that an insurance policy, like other contracts, should be so construed as to effectuate the intention of the parties, and if any of its terms or conditions are ambiguous, they should be construed most strongly against the insurer; but the courts have no right by construction to disregard the plain provision of a contract as made by the parties, or to hold that it means one thing when it says another. Some of the courts which construe the phrase "after the loss" to mean after the loss is ascertained and the right to sue exists, proceed on the assumption that there is no material difference between such a phrase and "after the fire," and have construed it in the same way:Steel v. Ph æ nix Insurance Company, 51 Fed. 715 (2 C.C.A. 463);Friezen v. Allemania Fire Insurance Company, 30 Fed. 352; Case v.Sun Insurance Company,
But we cannot assent to the doctrine of these cases. It seems to us that if "after the loss" means sixty or any other number of days after the happening of the loss, there is a material difference in the two phrases. As so construed, the one fixes as the period at which the limitation shall commence the time the loss is ascertained and payable, and the other in distinct and unequivocal language the time of the fire, which is certainly a different event. In one of the leading cases holding the doctrine contended for by the plaintiff, (Steen v.Niagara Fire Insurance Company,
The case principally relied upon by plaintiff as supporting his position is Steel v. Phoenix Insurance Company, 51 Fed. 715, (2 C.C.A. 463,) decided by the Circuit Court of Appeals of the Ninth Circuit, McKenna and Gilbert, circuit justices, and Hawley, district judge, sitting. The action was originally commenced in the Circuit Court of the United States for the District of Oregon on a policy of insurance limiting the time for bringing the action to twelve months "next after the date of the fire from which such loss shall occur," (47 Fed. 863,) and on appeal the decree of Judge Deady was reversed, McKenna, circuit justice, dissenting, the court holding that there was no material difference between "twelve months next after the fire" and "twelve months after the loss," and that the limitation did not commence to run until after the loss was ascertained and became payable. On appeal to the Supreme Court of the United States this decision was affirmed by an equally divided court, no opinions being delivered:
*228AFFIRMED.