BOLLINGER v. NATIONAL FIRE INS CO OF HARTFORD CONN

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District Court of Appeal, First District, Division 1, California.

BOLLINGER v. NATIONAL FIRE INS. CO. OF HARTFORD, CONN.*

Civ. 11810.

Decided: April 17, 1942

Jack J. Miller, of Stockton, and Kenneth M. Johnson, of San Francisco, for appellant. Long & Levit, of San Francisco, for respondent.

Plaintiff appeals from a judgment for defendant entered following an order sustaining defendant's demurrer without leave to amend.

So far as pertinent here, the complaint alleges that a fire, partially destroying property insured by the defendant, occurred on September 27, 1939; that prior to that date plaintiff had been appointed trustee in bankruptcy of the insured's bankrupt estate; that on November 18, 1939, plaintiff and the insured furnished the defendant with proof of loss as required by the policy; that by such proof of loss plaintiff claimed the sum of $1,333; that on December 22, 1939, plaintiff entered into an agreement with the Fire Companies' Adjustment Bureau, agent of defendant, fixing the amount of loss at $1,160.25; that shortly thereafter the defendant notified the insured that it denied all liability under the policy upon the grounds that at the time of the fire the original insured was not the sole and unconditional owner of the insured property, and that under the terms of the policy such a change has made the policy void; that on January 15, 1940, plaintiff commenced an action on the policy in the Superior Court of San Joaquin County; that on motion of the defendant, that action was transferred to the Municipal Court of the City and County of San Francisco; that said case proceeded to trial on January 8, 1941; that after plaintiff had completed the presentation of his evidence, defendant moved for a nonsuit upon the ground that the action had been prematurely brought in that it had been commenced before the expiration of thirty days from the date the loss payable under the policy had been ascertained, and that under the policy the commencement of any action thereon was prohibited for thirty days after the loss had been fixed; that the trial court on February 20, 1941, granted the motion for a nonsuit and judgment was entered on February 21, 1941. The present action was brought in the Superior Court of Contra Costa County on February 25, 1941. The policy upon which this action is predicated is pleaded as an exhibit to the complaint.

The policy contained a provision requiring the insured to comply with all provisions of the policy, and to bring any action based thereon “within fifteen months next after the commencement of the fire.” The theory of the trial court in sustaining the demurrer was that, inasmuch as this action was brought more than fifteen months after the commencement of the fire, it was barred by this contractual provision. On this appeal it is the contention of appellant, that when this clause is interpreted with the other provisions of the policy, the action was commenced in time, and, in any event, certain facts pleaded in the complaint are sufficient to estop respondent from relying on this clause.

The policy provides that when a loss occurs the insured must give to the company written notice thereof without unnecessary delay; that within sixty days after the fire the insured must render a preliminary proof of loss; that the company has twenty days thereafter to approve or disapprove the loss; that the loss is payable thirty days after the loss has been ascertained; and that “No suit or action on this policy for the recovery of any claim shall be sustained, until after full compliance by the insured with all of the foregoing requirements, nor unless begun within fifteen months next after the commencement of the fire.” Various provisions concerning arbitration of the loss could extend the period before suit could be instituted for over another one hundred days.

It will be noted that the insured has up to sixty days to file proof of loss, the company has twenty days to pass on such proof, and the loss is not payable until thirty days thereafter. No action may be commenced until full compliance with these requirements. It follows, therefore, that, under the policy, a period of one hundred and ten days––over three and one–half months––may expire before suit may be commenced. If arbitration is resorted to, an additional period of over one hundred days could expire before suit may be brought. In the present case the relevant dates are as follows:

September 27, 1939––Fire occurred.

December 22, 1939––Loss agreed upon.

January 15, 1940––First action commenced.

February 21, 1941––Judgment entered dismissing first action.

February 25, 1941––Present action instituted.

It will be noted that the present action was instituted within fourteen months from the date the loss was agreed upon, about eighteen months from the date of the fire, and about thirteen months from the date suit could have first been instituted––i. e., January 21, 1940, thirty days after the loss was agreed upon. Appellant did not sit back and allow the contractual period to expire without action on his part. He immediately instituted the first action––in fact, that action was filed on January 15, 1940, some six days before such an action could properly be filed. For over a year this action was pending. On February 21, 1941––more than fifteen months “next after the commencement of the fire”––that action was dismissed because prematurely filed. The present action was filed four days later.

There can be no doubt that in this state contracting parties may agree to fix a period within which an action must be filed, and that such period may be less than that provided by the statute of limitations, as long as the lesser period is not unreasonable. Tebbets v. Fidelity & Casualty Co., 155 Cal. 137, 99 P. 501; Fitzpatrick v. North American Accident Ins. Co., 18 Cal.App. 264, 123 P. 209; Harlow v. American Equitable Assur. Co., 87 Cal.App. 28, 261 P. 499; Beeson v. Schloss, 183 Cal. 618, 192 P. 292; Fageol T. & C. Co. v. Pacific Indemnity Co., 18 Cal.2d 748, 117 P.2d 669; see Annotation 121 A.L.R. 758. There is also no doubt that fifteen months is not an unreasonable period. But in every case there is always presented the question as to when the contractual period is to start. In the instant case, if the fifteen months' provision concerning the bringing of an action on the policy stood alone there can be no doubt but that the fifteen–month period would start to run from the date of the fire. The provision reads that no suit or action on the policy may be sustained “until after full compliance by the insured with all of the foregoing requirements, nor unless begun within fifteen months next after the commencement of the fire.” But that provision does not stand alone. It refers back to other provisions of the policy and requires “full compliance” with those provisions in reference to the fixing of the loss before an action may be commenced. The question is immediately presented as to the proper interpretation of these seemingly conflicting provisions in the policy. The policy purports to give the insured a fifteen–month period after the fire to commence his action. Actually, under other clauses of the policy which had to be complied with before suit could be commenced, the action in this case could not be filed until January 21, 1940––some four months after the date of the fire. If the position of respondent is sound, then appellant did not have fifteen months from the date of the fire to file his suit––he had but eleven months. Although the provision that the action must be commenced within fifteen months “next after the commencement of the fire” standing alone is clear and unambiguous, when that provision is read with the other provisions of the policy, an ambiguity is created. That clause implies that the parties have contracted that the injured party shall have a full period of fifteen months within which to file his action in place of the usual four years provided by the statute of limitations. But when that clause is read with other clauses referred to in the very clause under construction, it is seen that in this very case it was held in the prior action that the insured had no legal right to file his action until four months “next after the commencement of the fire,” thus cutting down the fifteen–month period apparently contracted for to eleven months. Had resort been had to arbitration, this eleven–month period could have been reduced another three and a half months. Thus, instead of permitting the insured a period of fifteen months within which to file his action, if respondent is correct, in this case he had but eleven months, and under some circumstances would have had but seven and a half months. Keeping in mind that this is a provision in an insurance policy which must be construed most strongly against the company, and also keeping in mind that by this provision the normal period of the statute of limitations is greatly reduced, it seems quite clear that when the policy is construed as a whole the only reasonable construction is that the insured is granted fifteen months from the time he could first file his action to file his complaint.

This is not the first time this problem has been presented to the appellate courts of this and other states. Although there is a definite conflict in the authorities, according to the weight of authority, such policy provisions are interpreted as excluding from their operation the period that must expire before suit properly may be commenced. Stated another way, regardless of the language used in such clauses, the majority of courts have held that the contractual period does not start to run until suit may be first filed. The rule is thus stated in 29 Am.Jur., page 1043, section 1397: “There is a sharp conflict in the cases on the question when the time begins to run within which a suit is required to be brought under the usual policy provisions. It is usually provided that the insurer shall have a certain time within which to pay the loss, postponing the time of payment, and that no action shall be sustained unless commenced within a certain time. Whatever may be the term employed in the latter provision, whether it is within a certain time ‘after loss,’ ‘after the fire,’ or ‘after death,’ many courts hold that the provision for immunity from suit and the one of limitation must be construed together and that the period of limitation does not begin to run until the loss is payable and an action might be brought against the insurer.” Cases from many jurisdictions are cited in support of the rule. The reasons for this rule are obvious. While contractual provisions shortening the statutory period, if reasonable, are valid, they do give one of the contracting parties an advantage over the other. When such provisions appear in insurance policies they must be strictly construed against the insurance company. By providing that suit may not be commenced until after thirty days from the date the loss is agreed upon, if that period is deducted from the fifteen–month period, obviously the period fixed by contract has been shortened to that extent. This raises an ambiguity. Did the parties intend that the contractual period should thus be shortened? In answering that question the majority of courts have held that the policy should be interpreted most strictly against the company, and for that reason have held that the parties intended that the insured should have the full contractual period during which he could file his action. These courts hold, therefore, that the contractual period does not start to run until the insured could first file the action––in the present case thirty days after the loss was ascertained, or January 21, 1940.

This rule has been expressly adopted by the Supreme Court of this state in the only case where that court has fully discussed the problem. In Case v. Sun Insurance Co., 83 Cal. 473, 23 P. 534, 8 L.R.A. 48, the policy compelled compliance with the provisions requiring the fixing of the loss before suit could be commenced and also provided that such suit “shall be commenced within twelve months next after the fire shall occur.” The fire occurred September 12, 1884, and suit was not commenced until November 22, 1885. Compliance with the other provisions of the policy was not completed until October 16, 1885. After reviewing the pertinent authorities at length, the court squarely held that the provisions requiring proof of loss as a condition precedent to bringing suit, created an ambiguity as to the proper meaning of the twelve–month provision, and that properly construed, the contractual period did not start to run until the insured could first file the action. The court based its decision directly upon the reasoning of the early case of Spare v. Home Mut. Ins. Co., C.C., 17 F. 568, 9 Sawy. 142, from which it quoted at length. In that quotation, it is first pointed out that the clause fixing twelve months as the period within which suit must be commenced was valid, and then the court referred to the contentions of the plaintiffs in that action concerning that clause, as follows: “ ‘* * * they contend that it must be read in connection with that other clause which provides that a loss does not become payable until 60 days after the proof of that fact is made; and that, taken together, the reasonable construction of them is that, the right to sue on the policy being postponed until the loss is payable, namely, sixty days after proof thereof, the twelve–months limitation upon such right does not commence to run until that time. This construction is supported by the decided weight of authority, and, in my judgment, is correct in principle.’ ” The court then cites many cases from other jurisdictions approving that rule. The court then quotes from Steen v. Niagara F. Ins. Co., 89 N.Y. 315, 42 Am.Rep. 297, as follows: “ ‘We think the intention of the defendant was to give the insured a full period of 12 months, within any part of which he might commence his action, and having, by postponement of the time of payment, secured itself from suit, it did not intend to embrace that period within the term after the expiration of which it could not be sued. In other words, the parties cannot be presumed to have suspended the remedy and provided for the running of the period of limitation during the same time. Indeed, the actual case is stronger; not only was the remedy postponed, but the liability even did not exist at the time of the fire, nor until it was fixed and ascertained according to the provisions of the policy. Having thus made the doing of certain things, and a fixed lapse of time thereafter, conditions precedent to the bringing of an action, the parties must be deemed to have contracted in reference to a time when the insured, except for that contract, might be in a condition to bring an action. Under any other construction, the two conditions are inconsistent with each other.’ ” The court expressly refused to follow the case of Garido v. American Cent. Ins. Co. of St. Louis, 2 Cal.Unrep. 560, 8 P. 512, recognizing that its holding was “not altogether in harmony with the cases which we follow in this case.” It should also be noted that the court did not hold that the company was estopped to plead the contractual provision because the loss had not been ascertained until after the contractual period had expired, as it could have done. Instead, it elected to and did place its decision squarely upon the sole ground that, properly construed, such contractual provisions do not commence to run until suit can first be filed. It will thus be seen that the Supreme Court as early as 1890 adopted the rule that was then, and still is, the so–called majority rule. See Annotations, 83 A.L.R. 748, particularly at page 760; 112 A.L.R. 1288, particularly at page 1297.

The respondent contends, however, that a later case of the Supreme Court, and one in the appellate court, have adopted the minority view, and that the Sun Insurance Co. case, supra, has been overruled. It must be conceded that these two later decisions have applied the minority view, but in neither of them was the problem here involved fully discussed, nor was the real holding of the Sun Insurance Co. case at all analyzed. The first case that is relied upon as establishing the minority rule in this state is Tebbets v. Fidelity & Casualty Co., 155 Cal. 137, 99 P. 501, 502, a department decision of the Supreme Court. That case involved an interpretation of a life–accident policy. The insured died September 4, 1904. Action was commenced April 5, 1905. The policy provided that proof of death must be furnished within two months of its occurrence, and that action could not be brought until three months after filing such proofs, “nor brought at all unless begun within six months from time of death.” The opinion does not state when proof of death was made. It is to be noted that under this policy a period of five months could expire before suit could be commenced. If the six–month period started from death, this would leave but one month in which to file the action, a period so short that it is very doubtful if it would be upheld as reasonable. The court did not note or discuss this fact. The opinion is two pages long. All but six lines of the decision are devoted to a discussion of the validity of the contractual provision shortening the statutory period of limitation. The contention of the insured was that the contractual provision was void as against public policy, relying on certain cases from other states so holding. The court properly held that such a provision, if reasonable, was valid. Then, at the very end of its opinion, the court, without recognition of the fact that such rule was directly contrary to its earlier decision in the Sun Insurance Co. case, supra, stated (page 139 of 155 Cal., page 502 of 99 P.): “The six months' period was not in itself unreasonable. It began to run from the date of the death, and was not affected by the provision that legal proceedings could not be brought before the expiration of three months from the date of filing proofs,” citing an Ohio case [Appel v. Cooper Ins. Co., 76 Ohio St. 52, 80 N.E. 955, 10 L.R.A.,N.S., 674, 10 Ann.Cas. 821], that state being one of the states that has adopted the minority view. The court had cited the Sun Insurance Co. case, supra, with approval, in its discussion of the validity of the contractual provision, but it nowhere recognized that, by its decision, it was overruling that well–reasoned case. Although, it must be conceded that the rule of this case is directly contrary to its prior decision, in my opinion, it should not be held that the court intended to and did overrule, in this cavalier fashion, its prior holding. The court not only did not discuss its earlier decision, but did not mention the many convincing, and, to my mind, compelling, arguments in favor of the majority rule. In fact, the later decision did not recognize that there was a conflict on the important principle involved.

The second case relied upon as establishing the minority view in this state is Fitzpatrick v. North American Accident Ins. Co., supra. The case involved a policy of accident insurance. The insured was injured January 18, 1909. He died on January 23, 1909. Suit was commenced February 16, 1910. The policy provided for notification to the company of any injury within ten days of an accident; that proof of claim must be made within two months after death; and suit must be brought within twelve months of the date of the accident. The opinion does not mention whether suit could be commenced prior to filing of proof of loss––the very clause which creates the ambiguity in the instant case. The court first holds that contractual clauses fixing the time for commencement of the action are valid. It then holds that under this policy the period started to run from the date of the accident. It places this holding squarely upon the holding above–quoted from the Tebbets case, supra. In addition, it cites, in support of its holding, the case of Garido v. American Cent. Ins. Co. of St. Louis, supra––a case that had been disapproved in the Sun Insurance Co. case, supra. The court discusses the Sun Insurance Co. case, supra, and holds that the real basis of that case was estoppel. The appellate court obviously misinterpreted the earlier Supreme Court decision. The Supreme Court, as demonstrated from the quotations above set forth, placed its decision solely upon the proper construction of the policy. It should be mentioned that no hearing was asked in the Supreme Court from the appellate court decision. Other cases cited by respondent on this issue are not in point. Neither the Tebbets case nor the Fitzpatrick case has been cited in any subsequent California case on the point here under discussion.

We are thus faced with a situation where there are three California cases where the problem here involved was discussed. One of these is the Sun Insurance Co. case, supra, which is the only case where an appellate court of this state has fully discussed the problem, and where the Supreme Court clearly and unequivocally adopted what we consider to be the reasonable and proper rule, and the rule adopted by the majority of courts of this country. Another of the cases––the Tebbets case, supra,––is one where the Supreme Court admittedly laid down a rule contrary to its prior decision, but failed to discuss its prior decision, failed to discuss the arguments in favor of the majority rule, and failed to recognize that there was a conflict in the authorities on the subject. The third decision is by the intermediate appellate court in which no hearing by the Supreme Court was asked. It blindly followed the brief holding of the Tebbets case, and not only misinterpreted the holding in the Sun Insurance Co. case, but cited, in support of its holding, a case that had been disapproved in that case. Although, of course, this court, as an intermediate appellate court, is bound to follow prior decisions of the Supreme Court, under the circumstances here disclosed the least that can be said is that there is a conflict in the Supreme Court decisions, and that the later case did not purport to overrule the earlier one. Under such circumstances, I think this court is free to follow what we consider to be the sounder rule, and the rule that is supported by the weight of authority.

This conclusion makes it unnecessary to consider or discuss appellant's contention that under the facts pleaded, regardless of the above–discussed rule, respondent is estopped from contending the action was not filed in time.

For the foregoing reasons the judgment appealed from is reversed, and the trial court is instructed to overrule the demurrer of defendant.

I dissent.

Appellant urges (1) that the complaint states a cause of action; (2) that a proper application of the doctrine of estoppel shows that a cause of action was stated, and (3) assuming the complaint was faulty, it was error not to grant leave to amend. Appellant's position is stated in the opening brief as follows: “From the complaint as it now stands it is ascertainable that there was a delay of four (4) months from the date of the fire to the time when an action could be brought. If during trial it should be shown that any portion of this delay was occasioned by the acts of the defendant * * * the fifteen (15) month period would be extended by such time.” Appellant relies upon the doctrine of estoppel.

The majority opinion holds that when the several provisions relating to the time when an action may be filed are read together “an ambiguity is created.” This point was not raised by appellant in his statement of questions involved on appeal nor does it appear to have been called to the attention of the trial court as is evidenced by its opinion which appears in the transcript. I fail to find any doubtful, indistinct or equivocal language (Kraner v. Halsey, 82 Cal. 209, 22 P. 1137) in the provisions of the policy with reference to the time within which suit may be brought. A definite maximum time is fixed; the minimum period may be uncertain depending upon compliance with designated requirements. Whether read together or separately no ambiguity appears. In Fitzpatrick v. North American Accident Ins. Co., 18 Cal.App. 264, 265, 123 P. 209, referring to a policy somewhat similar in its terms, the court said: “The provision in this policy limiting the time within which suit might be brought, is free from ambiguity.” Contracts, particularly insurance policies containing provisions that suits must be filed within specified periods but not until the happening of certain events, have been upheld in this state. The rule is stated and insurance cases cited in Beeson v. Schloss, 183 Cal. 618, 622, 192 P. 292, 294 as follows: “It is a well–settled proposition of law that the parties to a contract may stipulate therein for a period of limitation, shorter than that fixed by the statute of limitations, and that such stipulation violates no principle of public policy, provided the period fixed be not so unreasonable as to show imposition or undue advantage in some way. Tebbets v. Fidelity [& Casualty] Co., 155 Cal. 137, 99 P. 501; Case v. Sun Insurance Co., 83 Cal. 473, 23 P. 534, 8 L.R.A. 48; Fitzpatrick v. North American [[[[Accident Ins.] Co., 18 Cal.App. 264, 266, 123 P. 209; Garido v. American Ins. Co. [2 Cal.Unrep. 560], 8 P. 512; 1 Wood on Lim. (4th Ed.) 145; 25 Cyc. 1017.” The majority opinion relies upon Case v. Sun Insurance Co., 83 Cal. 473, 23 P. 534, 8 L.R.A. 48. Referring to that case, the majority opinion states: “* * * the court squarely held that the provisions requiring proof of loss as a condition precedent to bringing suit, created an ambiguity.”

The Sun Insurance Co. decision does not hold that an “ambiguity was created.” It sets forth certain provisions of a policy including one that any action “shall be commenced within twelve months” etc., the court at page 477 of 83 Cal., at page 535 of 23 P., 8 L.R.A. 48, saying: “In this case it was more than 12 months after the fire before an action could be commenced.” In Steen v. Niagara F. Ins. Co., 89 N.Y. 315, 42 Am.Rep. 297, quoted with approval in Spare v. Home Mut. Ins. Co., C.C., 17 F. 568, 9 Sawy. 142, it was held that the distinct and definite conditions in the policy “are inconsistent.” This is the holding in Case v. Sun Insurance Co., supra, based upon the facts of that case. The court in the Sun Insurance Co. case further said, page 477 of 83 Cal., at page 535 of 23 P., 8 L.R.A. 48: “This case is distinguishable from Garido v. [American Cent.] Ins. Co. [of St. Louis, 2 Cal.Unrep. 560], 8 P. 512, in which the plaintiff had ample time after his right of action accrued to have commenced it within 12 months after the loss occurred.” This seems to be a clear recognition of the fact that if in the Sun Insurance Co. case the insured, after compliance with certain conditions in the policy had remaining to him a reasonable time to file the action, a contrary conclusion would have been reached.

The majority opinion holds that there is a “conflict on the important principle involved” in the Sun Insurance Co. decision and that of Tebbets v. Fidelity & Casualty Co., 155 Cal. 137, 99 P. 501. When analyzed such seeming conflict disappears. In each case the clause or clauses in the policy limiting the period within which an action may be commenced is or are valid. In the Sun Insurance Co. case such clause, when read with others, demonstrates not ambiguity in language, but rather an incongruous or inconsistent condition as applied to the facts of that case. In the Tebbets case no such difficulty arose. It was stated at page 138 of 155 Cal., at page 502 of 99 P.: “The general rule, supported by the great weight of authority, is that a condition in a policy of insurance, providing that no recovery shall be had thereon unless suit be brought within a given time, is valid, if the time limited be in itself not unreasonable.” Citing the Sun Insurance Co. case as recognizing this principle. And, as applied to the facts of the Tebbets case, it was held that “The six months' period was not in itself unreasonable. It began to run from the date of the death, and was not affected by the provision that legal proceedings could not be brought before the expiration of three months from the date of filing proofs.”

The rule, “supported by the great weight of authority” (Tebbets v. Fidelity & Casualty Co., supra, 155 Cal. page 138, 99 P. page 502), that such conditions in insurance policies are valid “if the time limited be in itself not unreasonable,” was followed in Fitzpatrick v. North American Accident Ins. Co., supra. The majority opinion depreciates and attempts to minimize the value of this decision as an authority upon the ground that “no hearing was asked in the Supreme Court.” Conceding such fact, and that a denial of a petition therefor would have added weight, still the failure of a losing litigant to request such hearing does not diminish the soundness of the reasoning or the logical conclusion reached in the Fitzpatrick opinion. In Perry v. Magneson, 207 Cal. 617, 279 P. 650, an action upon a surety bond, it was agreed by the parties that the amount of the liability should be paid when the exact sum was ascertained. The court under the facts of that case held that a surety cannot hold out hope of amicable adjustment and thus delay action against it, further saying at page 621 of 207 Cal., at page 652 of 279 P.: “The provision for the limitation of time for the commencement of suit upon the bond was no doubt reasonable in point of time under ordinary circumstances, and, had the surety merely insisted upon a strict compliance with the provision, its position here would be tenable. Fitzpatrick v. North American Accident Ins. Co., 18 Cal.App. 264, 123 P. 209. But the appellant here did not do that.”

The principle laid down in the Tebbets case, that if the limitation is not unreasonable the parties may stipulate as to conditions and the time within which an action may be brought, has been generally or specifically upheld in Beeson v. Schloss, supra; Colma Vegetable Ass'n, v. Bonetti, 91 Cal.App. 103, 267 P. 172; Harlow v. American Equitable Assur. Co., 87 Cal.App. 28, 261 P. 499; Frankini v. Bank of America Nat. Trust & Sav. Ass'n, 31 Cal.App.2d 666, 88 P.2d 790. In Fageol T. & C. Co. v. Pacific Indemnity Co., 18 Cal.2d 748, 117 P.2d 669, 672, the court said: “Such a covenant shortening the period of limitations is a valid provision of an insurance contract and cannot be ignored with impunity as long as the limitation is not so unreasonable as to show imposition or undue advantage. One year was not an unfair period of limitation.” When the conditions are practically impossible of fulfillment, in the interest of administering substantial justice a rule in consonance with the rights of the parties is invoked. Case v. Sun Insurance Co., supra; Bennett v. Modern Woodmen, 52 Cal.App. 581, 199 P. 343.

The majority opinion concedes that “there is * * * no doubt that fifteen months is not an unreasonable period.” Admittedly the present action was not filed within the fifteen months' limitation stipulated in the policy. It is also admitted that appellant, after compliance with the provisions of the policy relative to proof of loss, etc., had over eleven months in which to file the complaint. Under ordinary circumstances that would be a reasonable period and the record shows that a proper complaint was not filed within that period. The majority opinion does not hold that the filing of the complaint within the eleven months was practically impossible. Such opinion is based upon the fact that “If arbitration is resorted to, an additional period * * * could expire before suit may be brought.” No such fact of resort to arbitration appears in this case. An appellate court is not permitted to speculate on what might have occurred. Roy v. Smith, 134 Cal.App. 240, 25 P.2d 251, 26 P.2d 650. The facts of the Sun Insurance Co. case are entirely dissimilar to those herein.

The main contention, estoppel, urged by appellant, is not decided in the majority opinion. The contention that the doctrine of estoppel should be applied is without merit. Where the insurer's conduct renders it impossible for the insured to file suit within the period stipulated in the policy, or the latter is lulled into a sense of security by deception or a violation of duty, the doctrine of equitable estoppel may be invoked. Miles v. Bank of America, etc., Ass'n, 17 Cal.App.2d 389, 62 P.2d 177. There is no claim that the respondent company or its legal representatives ever stated or indicated that their differences might be settled, or that for any reason, legal or factual, it would be to the advantage of appellant to delay the trial of a previous action to recover the loss. Neither is it claimed that the attorneys by unethical or irregular procedure imposed upon the court or counsel to the disadvantage of appellant. Albert v. Patterson, 172 Mich. 635, 138 N.W. 220.

Appellant argues that the trial of the first action was delayed through motions, extensions of time, etc., and that the defendant did not disclose its actual defense to that action, resulting in nonsuit, until after fifteen months from the date of the fire. It would be a harsh rule that would estop a party from raising a jurisdictional question based upon stipulations extending time, or considered in relation to motions or orders, particularly where, as in the present case, the record indicates that the motion for change of venue in the first proceeding was made in good faith and, as appears, was meritorious. It is appellant's contention that the above facts constituted misrepresentation. Appellant's contention with reference to defendant's defense of premature filing of the first action is answered in Wilhelmi v. Des Moines Ins. Co., 103 Iowa 532, 72 N.W. 685, 686, wherein the court said: “It is said that the defendant did not, in the original action, plead that it was prematurely brought, until after the time for bringing an action on the policy, as fixed by its terms, had expired. The thought expressed is that the defendant was guilty of bad faith in thus delaying to plead that defense, for the reason that, had it been urged sooner, the action could have been dismissed, and a new one commenced within the time allowed by the policy. We do not know of any duty upon the part of the defendant to protect the interest of the plaintiff by pointing out the defects in his proceedings before the case was reached for trial.” See Howard Ins. Co. v. Hocking (Hocking v. Howard Ins. Co.), 130 Pa. 170, 18 A. 614; Arthur v. Homestead Fire Ins. Co., 78 N.Y. 462, 34 Am.Rep. 550.

The trial court determined that the facts presented were not sufficient to constitute a misrepresentation which would bar respondent from the right to a nonsuit. I believe the conclusion reached to be correct. An estoppel to claim the benefit of a contractual or statutory limitation provision may not be based upon legal and proper proceedings taken in good faith.

Appellant's final contention is that, assuming the complaint in the present action to be faulty, it was error not to grant leave to amend. In his brief he states: “Obviously it would have been an idle act for plaintiff to make an offer to amend in the lower court,” and he thereupon seeks an order from this reviewing court to reverse the judgment and direct that he be permitted to amend the complaint. He states that he desires to amend by pleading facts showing the reason for the “delay” between the date of the fire and the commencement of the present suit; that is, the facts and circumstances surrounding requests for continuances of the first action, etc. The “reasons” or the “facts and circumstances” other than as above outlined are not disclosed to this court, and they were not presented to the trial court. The allegations of the complaint show that there was no “delay” or at least no unusual delay on the part of the respective parties in reaching an “agreement” on the amount of loss. All acts on the part of the insurer and the insured were within the periods fixed in the policy of insurance. If appellant desired to amend the complaint relative to stipulations or otherwise, there was ample opportunity to do so. The complaint in the present case was filed February 25, 1941. The demurrer thereto was filed March 26, 1941, subsequently argued and submitted on briefs, and sustained on May 2, 1941. That careful consideration was given to the points is indicated by a three–page opinion which appears in the record. Judgment was entered five days later. The record indicates that appellant cannot plead sufficient facts, and the law precludes the maintenance of this action.

Section 472c of the Code of Civil Procedure, adopted in 1939, provides: “When any court makes an order sustaining a demurrer without leave to amend the question as to whether or not such court abused its discretion in making such an order is open on appeal even though no request to amend such pleading was made.” This section does not permit plaintiff to stand on his complaint, then, when on appeal he discovers the possibility that the complaint is fatally defective, urge to the appellate court that the trial court abused its discretion by not giving him leave to amend because he has now discovered that he can amend by setting up a new theory, or by changing materially the original allegations, which new theory or changes were never disclosed to the trial court. In order to avail himself of the section, the burden is on the appellant to show that the trial court “abused its discretion” in making the order sustaining the demurrer without leave to amend. That burden has not been sustained by this appellant. In my opinion the law and the facts require an affirmance of the judgment.

PETERS, Presiding Justice.

E. P. MURPHY, Justice pro tem., concurred.