Carey v. Farmers' Insurance , 27 Or. 146 ( 1895 )

Opinion by

Mr. Justice Moore.

It is contended for defendant that proof of the loss should have been made within sixty days after it occurred, and that fact so alleged in the complaint, and that the want of such allegation entitled it to the judgment rendered; while the plaintiff insists that the policy of insurance did not require the proof to be made within that time, and that the defendant waived such proof. It will be observed that the terms of the policy are that “In case of loss the assured shall give immediate notice thereof, and shall render to the company a particular account of said loss, under oath, stating the time, origin, and circumstances of the fire.”» This provision must be construed to mean that the proof of loss should be made within a reasonable time, in view of all the attending circumstances. Such terms in a contract are not to receive a literal construction, and the question whether the proof has been made “immediately” is one of fact .for the jury: 2 Wood on Fire Insurance (2d ed.), 952. The term “immediately,” as used in the policy, required the exercise of reasonable diligence by the plaintiff, which would be measured by his ability to make the necessary proof within a given time. If he could by the exercise of such diligence have made the proof prior to February twenty-fourth, eighteen hundred and ninety-four, and this fact had been admitted by the pleadings, the court could, as a matter of law, have said that the proof of loss had not been made “immediately”: 2 Wood on Fire Insurance, 930; but no such admission appears, and hence the question of reasonable time within which such proof should have been made was one of fact for the jury. The cause was argued in this court by the counsel for the defendant upon the assumption that the policy required the proof to be made within sixty days after the loss, and it was presumably decided by the court below upon that theory, but the alleged copy of the policy set out in the complaint contains no such provision. In view of these considerations, it was error to sustain the demurrer, for which reason the judgment must be reversed, and the cause remanded for further proceedings not inconsistent with this opinion.

Reversed.

Wolverton, X, having participated in the trial of this cause in the court below, took no part herein.