101 Tenn. 643 | Tenn. | 1899
This suit was instituted in the Circuit Court of Davidson County to collect a policy of life insurance, amounting to $1,000. The policy was issued June 30, 1894, by the Connecticut Indemnity Association, on the life of Allen B. Guthrie, payable to his mother, Adaline Guthrie. The insured executed his note to the company for the •sum of $26.27, covering the first year’s premium. This note was not paid at maturity, nor has it ever been paid. The insured, Allen B. Guthrie, died on the 1st of January, ,1895, and on the 4th of November, 1895, suit was brought to collect the amount of the policy. The summons was served November 27, 1895, on E. B. Craig, insurance commissioner of the State. To this suit the company filed a plea
This case was tried before the Hon. J. W. Bonner, without the intervention of 'a jury and upon a stipulation of agreed facts. The defense of the company is rested exclusively upon the seventh condition of the policy, which is as follows: “It is expressly understood and agreed that no action shall be maintained nor recovery had for any claim upon or by virtue of this policy after the lapse of one year from the death of said insured, and if said suit or proceedings for such recovery be not commenced within one year from the date of the death of said insured it shall be deemed a waiver on the part of all parties concerned of all rights or claims under or by virtue of this policy, and as conclusive evidence against the validity of such claim, and this policy shall be null and void and of no effect, and no person shall be entitled to damages or the recovery of any money paid thereon.”
It is not controverted by the plaintiff that such a contractual limitation contained in a policy of insurance is valid and enforcible. In Riddlesbarger v. Hartford Ins. Co., 74 U. S., L. E., 259, the Court, in passing on this question, said, viz. :'“The contract of insurance is a voluntary one, and the insurers have a right to designate the terms upon which they will be responsible for losses, and it is
.The validity of the limitations stipulated on conditions similar to the one in the case at bar, has been elaborately considered in the highest Courts of several of the States, and has been sustained in all of them except in the Supreme Court of Indiana. We have no doubt of its validity.
‘ ‘ The rule is' that, while the parties to a contract cannot by anything contained therein oust the jurisdiction of the Courts, yet they may lawfully contract to limit the time within which an action upon such contract shall be brought, and the limitation so imposed is binding on the parties. ’ ’ 1 Wood on Limitations, Sec. 42, and authorities cited.
It is insisted, however, by the plaintiff that the suit is not barred by the contractual limitation of one year, but is saved by the original suit which was commenced November 4, 1895. That suit, as already stated, was dismissed in January, 1897, by this Court on defendant’s plea in abatement for want of sufficient service of summons. This suit was commenced within one year thereafter, to wit: on May 18, 1897.
Plaintiff’s first insistence is that his present suit is protected by § 4446, Shannon’s Code, viz.: ‘‘If the action is commenced within the. time limited,
•While it is true the original suit was dismissed for insufficient service of process, and not for any cause concluding plaintiff’s right of action, we are-of opinion that the statute is wholly inapplicable in the present instance. It clearly refers to statutory, and not to contractual, limitations; for otherwise a statute could be made utterly subversive of contracts executed by parties upon the most deliberate consideration. It was held by the United States Supreme Court, in Riddlesbarger v. Hartford Ins. Co., 74 U. S. (L. E.), 258, that “the contractual limitation is not affected by the fact that a previous action, which was dismissed, had been commenced within that period, and that the statute of a State which allows a party who suffers a nonsuit in an action to bring a new action for the same cause within one year afterwards, does not affect the < rights of the parties in such a case.” This must be true, for, if the contractual limitation is valid, the parties are not bound by the general limitation of the statute, and, for a like reason, they are not bound by the savings of the statute. The question is purely one of
It is next insisted the Court erred in holding that the contractual limitation ran against plaintiff, although defendant had no officer, agent, or representative in the State upon whom process could be served within one year from the death of Allen B.
The- Act of 1887, Ch. 226, which the Court held authorized the service of process on James Wither-spoon, former agent, was intended to enlarge the provisions of the Code regulating the service of process on foreign corporations having an officer or agent and a resident local agent in the county in which suit is brought. The Act of 1887 provides that any nonresident corporation ‘c found doing business in this State shall be subject to suit here, so far as relates- to any transaction had in whole or in part in this State, or any cause of action arising here, but not otherwise.”. The second section defines what is meant by “being found doing business in this State as embracing any transactions with persons, or having any transaction concerning any
The question, then, is narrowed down to this, whether the absence of the defendant company, its officers and agents, during the year 1895, saved the contractual bar. It is insisted this contractual limitation in a policy can be waived, and counsel cite Semmes v. Hartford Ins. Co., 13 Wall., 156, in which a condition of war was held to excuse a compliance with this contractual limitation. See, also, Phœnix Ins. Co. v. Underwood, 12 Heis., 421, to the same effect. We think, however, these cases furnish no analogy for our guidance in this investigation. Such a condition overrules all law and suspends the execution of all contracts, as well as the enforce
Says Mr. Beach in his work on Insurance (Vol. 2, Sec. 2258): “The conditions usual in policies of insurance of all kinds, limiting the period within which suits are to be brought upon . them, as to their construction, do not assimilate to the general statutes of limitations of suits. They are treated as part of the contract of insurance, and the same rules governing the construction of other conditions in such contracts are applied — as, for instance, the Courts must confine the parties to the contract they have made, and not to modify or enlarge it to the extent to make a new contract for the parties.”
As well said by the Circuit Judge: “If the position of plaintiff’s counsel be correct, then a foreign corporation, once doing business within a State, must, in order to maintain a contractual . limitation as to suits, keep an agent there . indefinitely, although it has formally withdrawn from the State, surrendered its license, and is transacting no business, and, in the case of a life insurance company, this arrangement must be maintained until the maturity of every policy; and twelve months thereafter, notwithstanding the Courts of its domicile are open all the time.”
Counsel for plaintiff in error cite the case of Peoria Ins. Co. v. Hall, 12 Mich., in support of his contention that the operation of the contractual limitation is suspended during the absence of the
The case of Everett v. Niagara Ins. Co., Law Journal (a Pennsylvania case), distinctly recognizes the 'authority of the Riddlesbarger case, and, also, the authority of the Pennsylvania cases cited, but distinguishes that case from the others in the important feature that the original summons had been kept alive by an alias summons duly issued and served.
We think the judgment of the Circuit Judge is sustained by the great weight of authority, and it is affirmed.