28 Mo. App. 7 | Mo. Ct. App. | 1887
This is an action to recover on an insurance policy for loss sustained by fire. The loss is alleged in the petition to have occurred on the twenty-sixth day of September, 1885. The answer pleaded several matters in defence, predicated on provisions contained in the contract of insurance, principal among' which is this: It was made a condition in said policy, that no suit or action ’ against the company should be sustainable in any court of law or chancery for the recovery of any claim by virtue of this policy, unless such suit or action shall be commenced within six months next after the loss shall occur, and should any suit or action be commenced against this company after the expiration of the aforesaid six months, the lapse of time shall be taken and deemed as conclusive evidence against the validity of such claim, any statute of limitation to the contrary, notwithstanding. It is averred in the answer that this action was not commenced within the prescribed period of six months after the loss occurred. The replication admitted this allegation of the answer ; but pleaded by way of legal conclusion, that by the terms aforesaid the loss did not become due and payable until after sixty days from the receipt of the proofs of loss at the Chicago office of defendant, which was about the twenty-second day of December, 1885 ; and that defendant, on receipt of -the same, made no objection thereto, and promised the assured that the loss would be speedily adjusted, until about the twenty-fifth day of January, 1886, when the assured, for value received, as
I. The answer was objected to because it started out with a denial of “each and every allegation therein set forth, which is not hereinafter specifically admitted.” We adhere to what is said in Long v. Long (79 Mo. 649), touching this matter of pleading. But without stopping to inquire whether or not the answer under review falls under the denunciation of that opinion, it is sufficient to say, that as the determination of this case finally turns upon the facts admitted in the pleadings, it is wholly immaterial to rectify the imputed defect.
II. On filing the answer, which purports to be an amended answer, the plaintiff filed motion to strike out
“1. Because the facts, relied on and set forth in said portion of said amended answer, existed and were known to said defendant at the time of filing his original answer herein, and was by it waived, and plaintiff, relying upon such waiver, has gone to great expense in taking depositions and otherwise preparing for trial.
“2. Because there is no merit in said defence so added as to entitle said defendant to said amendment; but it is a provision in the nature of a limitation for defendant’s sole benefit and precludes a trial of this cause on the merits.
“ 3. Because said provision is void as against public policy and the time therein limited is unreasonable.
“4. Because said portion of said answer is inconsistent with the allegations set out in the said answer to the effect that the loss, under said policy, should become due and payable within sixty days of the filing of proofs of loss in the office of the company at Chicago.
“5. Because it nowhere appears in said answer, that six months had elapsed after filing of the proofs as required by the policy, before the commencement of this suit by plaintiff.”
The abstract does not furnish us with the original answer, so as to enable us to determine what it contained. The plaintiff, in his abstract, merely states that he introduced in evidence that answer, and we are left to infer that it supported his contention, but it is a mere inference. But, even if the fact be conceded that the first answer did not interpose the limitation in bar, the objection is not well taken. The code (sect. 3571) provides that: “A petition, or answer, may be amended by the-proper party, of course, without costs, and without prejudice to the proceeding already had, at any time before the answer or reply thereto shall be filed.” So it is held that, notwithstanding the old rule, which disfavored unconscionable pleas, like usury and the lapse of time, where the statute thus allows a party to amend
III. This brings us to the consideration of the real, .controlling question involved in this appeal: Was the action barred by reason of the failure to institute suit within six months after the date of the fire % The plaintiff contends that the six months’ limitation did not begin to run until after the period of sixty days had elapsed for making payment after proof of loss “was received by the company, at its office in Chicago; while .defendant contends that the six months’ limitation began to run from the day the property was destroyed by fire. If the plaintiff’s position be correct, the judgment must be reversed. If defendant’s position be the correct one, .the judgment must stand. The policy, as disclosed by the petition, contained the jirovision, prior to the one respecting the six months’ limitation : “that the amount of loss or damage, to be estimated according to the .actual cash value, at the time of the loss, and to be paid sixty days after the proofs of the same, required by the company, shall have been made by the assured, and received at the office of said defendant in Chicago, and
The word “occur” is an ordinary one, and in such connection plainly means “ to befall, to happen.” Wor. Die. It has no technical import. If it were said when A’s death, or marriage occurred, or when the war occurred, or the fire occurred which consumed A’s house, every person would at once understand it had reference to the time, the date, when the event befell, or happened. When did this loss occur? Certainly, on the day, at the instant, when the property was destroyed by the fire. The term employed in the contract is apt and unambiguous. And but for the fact that courts of high character, notably of New York, have construed the term “occur,” in such connection, as synonymous with the term “accrue,” I should deem the question answered by the statement. The argument of the advocates of this rule of construction is, that as the contract of insurance contains the antecedent stipulation that no right of action accrues until sixty days after the proofs of loss have been made and presented, according to the requirements of the policy, the two provisions should be considered and construed together; that as the sixty days period is a bar to any right of action against the company prior to its expiration, the period of six months accorded by the other provision would in effect be reduced to four months, “and the time is subjected to such additional abatement as may be made necessary by alleged inadequacy of proof of controversies between the insurers and the policy holders before such loss is satisfactorily ascer
The first provision of this contract is, that the company shall have sixty days of grace in which to make payment after the assured has furnished the required proofs of loss. This period is much within the control of the assured. He may hasten or delay his part of the work at pleasure, and at his own risk. The other provision simply declares that such proofs must be so made, that while affording the company its days of grace, yet, in no event to be so prolonged as to extend the right of action under the contract beyond the period of six months from the day the loss occurs; with the exception, of course, that the insurance company may, by its conduct, or misconduct, create a waiver or- estoppel.. The company, by an arbitrary refusal to adjust the loss, could not prolong the sixty days period in which the policy holder could sue. Where it refuses to adjust, the right of action accrues at once, regardless of the sixty days limitation. Philips v. Insurance Co., 14 Mo. 221. But whatever may be our opinion as to the merits of the rule in question, we feel constrained to regard it as adjudicated in the case of Glass n. WaUcer (supra). The policy contained similar provisions to those under consideration, the only difference being-twelve months in the one case, and six in the other.
The insurance company had sent its adjuster to inspect the property after the fire, who informed the assured that he thought his proofs were sufficient, and if anything further was needed the company would so advise him. After this the company notified him it would not pay the loss. Suit was brought. On the trial, the court ^instructed the jury that, “unless they found that .the suit was commenced within twelve
IY. The only remaining question for determination is, was there a waiver by defendant of this provision of the contract by reason of any of the matters pleaded in the reply? The six months did not expire until the twenty-eighth day of March, 1886. The pleadings show that as early as the sixteenth day of January, 1886, the defendant notified the assured of its refusal to settle. That instant the assured had a cause of action, and over two months left in which to institute it. Again, on the fifteenth day of February, after the assured had assigned the contract to 'plaintiff, the company notified the plaintiff that it .would not settle. He then had one month and a half left in which to sue. There could, in such case, be no complaint on plaintiff’s part, of the shortness or unreasonableness of the time left him in which to sue, after negotiations for settlement had thus ended. Thompson v. Railroad, 22 Mo. App. 321. There is no pretense that after the positive refusal to settle, at the periods above stated, the defendant did or
The only other matter relied upon in the reply, as avoiding the limitation, is the fact that while the assured held the policy he hypothecated it with the Mutual Life Insurance Company, of Connecticut, as collateral security for money borrowed by him from said company; that this hypothecation was made with the approval of defendant; and that, as the assignor was to pay off this debt, and failed to do so, the plaintiff could not procure the policy until the twenty-first day of April, so as to bring suit. Plaintiff contends that the defendant, by thus assenting to the pledge of the policy as security, ratified the act of the assignor in putting it •out of plaintiff’s power to control the policy earlier than April, 1886. In support of this remarkable proposition, we are referred to the case of Marts v. Cumberland Mutual Fire Insurance Co. (44 N. J. Law, 478). The case has no relevancy to the point in issue here. By consenting to the hypothecation of the policy, the defendant would be estopped to make any defence predicated upon such act. But why the defendant should be barred from pleading the limitation to an action on the policy prescribed in it, merely because the plaintiff’s assignor, the party with whom its contract was made, would not pay his debt to the company, and reclaim his policy, is not apparent. Surely the party assured could not avail himself of his default with the Connecticut Company as a defence to his contract with defendant ; and the assignee stood in the shoes of the assignor. The plaintiff, for his own protection, could have paid off the lien of the Connecticut Insurance Company, and obtained possession of the instrument. He would have had recourse on his assignor. But as to this defendant, any complication arising out of the contract with the other company, was clearly res inter alios acta.
It follows that the judgment of the circuit court is affirmed.
