39 P.2d 306 | Idaho | 1934
Respondent has shown no prejudice because appellant's brief was not served within the time allowed by rule No. 45 of this court, hence his motion to dismiss therefor is denied (Noble v. Harris,
Respondent sued upon a health and accident insurance policy to recover indemnity for a nervous breakdown allegedly beginning December 2, 1929, and continuing through March 7, 1930, and additional hospital benefits from December 8 to 23, 1929, recovering judgment for $473.64, the amount provided by the policy plus interest and costs.
Appellant urges that the action not having been instituted within two years after the expiration of the period provided *133 in the contract of insurance for making proof of loss was barred by this provision of the contract:
"No action at law or in equity shall be brought . . . . nor shall such action be brought at all unless brought within two years from the expiration of the time within which proof of loss is required by the policy."
Section 28-110, I. C. A., provides:
"Every stipulation or condition in a contract, by which any party thereto is restricted from enforcing his rights under the contract by the usual proceedings in the ordinary tribunals,or which limits the time within which he may thus enforce hisrights, is void." (Italics ours.)
and section
Section 28-110, supra, has been twice held valid. (Douvillev. Pacific Coast Casualty Co.,
Similar statutes have been upheld in other states. (Keys Keys v. Williamsburg City Fire Ins. Co. of Brooklyn, N. Y.,
Appellant urges, however, that section
"No such policy insuring against accidental bodily injuries or disease or death shall be issued or delivered in this state if it contains in substance, any of the following provisions:
"1. A provision limiting the time within which an action at law or in equity may be commenced to less than one year from the date when the final proof of claim is filed with the company. . . . ."
is a special statute limiting suit on the particular type of insurance policy here under consideration, and that it, not section 28-110, supra, governs.
Section
As was said in Dozier v. Ellis,
". . . . the doctrine is now very fully established, that implied and equitable exceptions are not (to) be engrafted upon the statute, and where the legislature has not made the exception in express words in the statute, that court cannot allow it on the ground that it is within the reason or equity of the statute." (Italics ours.)
This rule finds support in 37 C. J. 689, sec. 9, and cases therein cited; Wood on Limitations, sec. 11b.
Although none of the cases or texts with regard to this point involve the precise situation here, they are persuasive as to the construction to be given the statute, and this court will not usurp the legislative prerogative by writing therein that which is not there by express word or implication. (59 C. J. 1129, sec. 669.)
While there is a legitimate argument that if by sec.
The one makes the issuing and delivering of a policy of a certain kind a crime; the other statute fixes a limitation for a civil action. It is only the implied sanction of a penal statute applied to a procedural statute as to civil actions which creates an inconsistency or repugnant situation and this is not sufficient to require that such construction, as appellant contends for should be placed on the two, though considered together. (59 C. J. 857.)
Relative to the assignment by the appellant that the judgment is not supported by the evidence, and argument that respondent was not totally disabled within the meaning of the policy during all of the period in question because he was not confined within doors, suffice it to say that during the trial appellant's attorney made the following, admission:
"I believe we can admit he was totally disabled from December 2nd up to the date of March 8th; I will admit it."
The judgment is therefore affirmed; costs awarded to respondent.
Budge, C. J., and Morgan, Holden and Wernette, JJ., concur.