Appeal from Circuit Court, Multnomah County. Richard J. Burke, Judge.
Paul D. Clayton, Eugene, argued the cause for appellant. With him on the briefs were Luvaas, Cobb, Richards & Fraser, Eugene.
Raymond J. Conboy, Portland, argued the cause for respondent. With him on the brief were Donald R. Wilson, and Pozzi, Wilson & Atchison, Portland.
Plaintiff brought this declaratory judgment proceeding seeking a declaration that a policy of automobile liability insurance issued by plaintiff to one Dorothy M. Brewer did not cover defendant, a passenger, for certain injuries he sustained in an automobile accident. Defendant counterclaimed for $10,000, the limits of the uninsured motorist coverage. The trial court gave judgment for defendant for $3,500, together with attorney fees. Plaintiff appeals.
Plaintiff issued a standard automobile liability insurance policy to Dorothy M. Brewer of Coos Bay, Oregon. At approximately 12:30 a.m. on August 7, 1969, Mrs. Brewer's car was being operated by her son, William C. Leslie. His passengers were defendant Robert B. Colton and Gregory Nelson. Leslie let Nelson out of the car in front of Nelson's house and proceeded west on Hemlock Street approximately 75 feet and turned right on 13th Street. After traveling approximately 100 feet north on 13th Street, Leslie's vehicle collided head-on with a telephone pole near the right-hand edge of the street. Leslie and Colton were both injured.
Defendant Colton testified that when Leslie had driven 50 feet north on 13th Street, he and Leslie saw headlights coming into their lane of traffic and that Leslie swerved to the right to avoid a head-on collision with the vehicle. Defendant stated that the oncoming vehicle was a blue 1957 Chevrolet sedan, and that "it was going way too fast for the corner."
Gregory Nelson heard the crash. The Nelson house is separated from 13th Street by two other residences, and Nelson could not see the scene of the accident. Nelson ran to the corner of Hemlock and 13th Streets
and saw a blue 1957 Chevrolet proceeding south on 13th and turning east onto Hemlock at a speed of 25-30 miles per hour. No other vehicles were in the vicinity.
Later the same morning Colton and Leslie went to the office of plaintiff's agent in Coos Bay. They described to the agent the circumstances of the accident and the nature of their injuries. The agent told them that the blue 1957 Chevrolet was a "phantom vehicle" and wrote that term in his report of the accident as the "other car involved." The agent instructed Leslie and Colton to send any medical bills to the insurance company, but the nature or extent of the insurance coverage was never explained. Defendant did not see the insurance policy. The agent did not tell defendant that he had to fill out any form or file any claim on the accident. Defendant asked whether he had to complete any forms or sign any papers, and the agent told him that he did not.
Defendant submitted several medical bills to plaintiff and they were promptly paid. Approximately five weeks after the accident, defendant returned to the agent's office and asked whether the insurance would pay for further treatments and plastic surgery on defendant's facial scars. The agent informed defendant that he was too late to file a claim under the policy's uninsured motorist coverage since all such claims had to be filed within 30 days of the accident.*fn1 Defendant then consulted an attorney and this litigation followed.
The policy issued to Mrs. Brewer contained a clause ...