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Ettman v. Continental Insurance Co.

Decided: May 18, 1936.

AMANDA ETTMAN, PLAINTIFF-RESPONDENT,
v.
CONTINENTAL INSURANCE COMPANY, DEFENDANT-APPELLANT; AMANDA ETTMAN, PLAINTIFF-RESPONDENT, V. QUEEN INSURANCE COMPANY OF AMERICA, DEFENDANT-APPELLANT



On appeal from the Supreme Court.

For the appellants, Arthur T. Vanderbilt.

For the respondent, Francis A. Stanger, Jr.

Hetfield

The opinion of the court was delivered by

HETFIELD, J. This is an appeal from judgments of the Supreme Court entered upon verdicts of a jury rendered in

favor of the plaintiff at a trial held in the Cumberland Circuit. The plaintiff instituted independent suits, and because the same questions of law and fact were involved in both cases, they were consolidated at the trial and also for review by this court.

The plaintiff sought to recover the loss occasioned by the burning of a frame dwelling situated near Alloway, Salem county, upon which the defendants had placed insurance. The fire occurred during the night of January 27th, 1934, at which time the plaintiff and her family were visiting a daughter in Salem. Each of the two policies involved contained a condition which provided in part "no suit or action on this policy, for the recovery of any claim, shall be sustainable in any court of law or equity * * * unless commenced within twelve months next after the fire." The summons in the Continental Insurance Company suit was tested March 15th, 1935, and in the Queen Insurance Company suit on March 16th, 1935.

The defendants contend, among other things, that there was error in the refusal of the trial court to grant defendants' motions for a nonsuit and directed verdict, because of the fact that the actions were not instituted within twelve months after the fire, as provided in the policies.

The plaintiff alleges that she was misled by the attitude and promises of the defendant's agents, to the effect that defendants would rebuild her house, and that she delayed bringing suit because she relied upon such representation.

It appears that two days after the fire had occurred, one Melville B. Horter, an adjuster for the defendants, called upon the plaintiff, and she testified with respect to his visit as follows:

"Well, he came in and he told me he was the adjuster. I asked him in and he came in and he said he had been out to the ruins and he said, 'now, Mrs. Ettman, you know that we don't pay any money, but you get an estimate from a builder and send it to us, and the sooner you send it to us the sooner we will put your place ...


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