95 P. 89 | Ariz. | 1907
— Lillie S. Gill brought suit against the Manhattan Life Insurance Company to recover on a policy insuring the life of her deceased husband. The policy, set forth in the complaint, recites, among other considerations for the insurance, that it is issued “in consideration of the application for this insurance, and the statements and covenants therein contained, which are a part of this contract.” The application, also set forth in the complaint, contains the following: “It is expressly agreed on behalf of the applicant and of any person who shall have or claim any interest in any policy issued upon this application .... that no suit shall be brought against the company upon such policy after the expiration of two years from the time that the 'cause of action shall have accrued.” This action was instituted after the expiration of two years from the time of the accrual of the cause
Plaintiff alleges in her complaint that at the time of the accrual of the cause of action she was under the age of twenty-one years, and that she attained her majority within less than two years prior to the institution of the action. She avers also that the defendant purposely and willfully concealed from her the contents of the application made by the deceased for the purpose of inducing her to delay the bringing of the suit until after the two years mentioned in the application had expired, and did purposely, willfully, and with intent to defraud her induce her to delay the bringing of this action until more than two years had elapsed after her cause of action had accrued; that she has never been able to obtain an inspection of the application; and that the copy attached to the complaint is a copy of said application as furnished to her by the defendant after repeated demands therefor, and that the same was not furnished to her until after the lapse of the two years mentioned in the application. No act of the defendant is pleaded tending to prevent the plaintiff from acquiring knowledge of the contents of the application, or to induce her to delay suit.
1. It is settled in this jurisdiction that an agreement in a contract of insurance limiting the time within which an action may be brought thereon to a period less than that prescribed by the statute of limitations will be enforced. Riddelsbarger v. Hartford Ins. Co., 7 Wall. (U. S.) 389, 19 L. Ed. 257.
2. It is also determined in this jurisdiction by authority specifically to the point, as well as by the elemental law of contracts, that terms may be incorporated in the policy of insurance by reference, and that, when so incorporated, they will be enforced as part of the contract of insurance. Connor v. Manchester Assur. Co., 130 Fed. 743, 65 C. C. A. 127, 70 L. R. A. 106.
3. The limitation upon this action being a matter of contract, and not a matter of statute, it applies to an infant as effectually as to one who has attained majority. Mead v. Phoenix Ins. Co., 68 Kan. 432, 104 Am. St. Rep. 412, 75 Pac. 475, 64 L. R. A. 79.
It follows that the demurrer was properly sustained, and that the judgment must be affirmed.
KENT, C. J., and CAMPBELL, J., concur. DOAN, J., dissents.