Hocking v. Howard Insurance
18 A. 614
Pa.
1889
Check Treatment

Opinion,

Mr. Justice Mitchell:

The validity of the special agreement as to the time of bringing any action on the policy is conceded: Farmers Ins. Co. v. Barr, 94 Pa. 345; North W. Ins. Co. v. Oil & Candle Co., 31 Pa. 448; Waynesboro Ins. Co. v. Conover, 98 Pa. 384; Universal Ins. Co. v. Weiss, 106 Pa. 20. It follows, therefore, that the statutes of limitation do not apply. The very object and spirit of the agreement are to exclude the operation of the statute which would otherwise govern. And in the present case the exclusion is so clear and express that nothing short of an entire disregard of the language used can escape it: “ It is hereby expressly provided that no suit or action against this company for the recovery of any claim by virtue of this policy shall be sustainable in any court of law or chancery..... unless such suit or action shall be commenced within twelve months next after the fire shall have occurred; and, should any suit or action be commenced against this company after the expiration of the aforesaid twelve 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.” The words are, not that “ no first action ” shall be sustainable, but “ no action ; ” and in the face of these words, and the concluding clause, “ any statute of limitation to the contrary notwithstanding, ” we regard the argument that the case is within the purview of the second section of the act of March 27, 1713, relative to the bringing of a second action within a year after a reversal of the first, as entirely irrelevant. The statute is expressly excluded from operation, the second section as much as the first, and the rights of the parties must be determined without reference to it.

This conclusion is too clear on general principles to require fortification, but there are high authorities very closely in point. *180In Wilson v. Insurance Co., 27 Vt. 99, Chief Justice Redeield says: “The stipulation.....is that no recovery shall be had unless such action shall be commenced,” etc. “ Such action can only signify the action in which the recovery is sought. That must be this action, and all actions in which a recovery is claimed. And there is no provision for any exception on account of the failure of any such actions.....Statutes of limitation would be subject to no such exception, unless by the express terms of the statutes. That a party was driven to a nonsuit in his former suit is no excuse for not bringing a suit before the cause of action is barred by statute, or by the terms of the contract, unless such an exception is contained in the act of limitation.”

Riddlesbarger v. Insurance Co., 7 Wall. 386, is a case almost identical with the present. There, the statute of limitations of Missouri provided that if, in any action commenced within the statutory period, the plaintiff should suffer a nonsuit, he might commence a new action within one year; but the Supreme Court of the United States held that this provision did not prevent the bar of the agreement. “ The rights of the parties,” says Field, J., “ flow from the contract. That relieves them from the general limitations of the statute, and, as a consequence, from its exceptions also.” To the same effect are Wilkinson v. Insurance Co., 72 N. Y. 499, and Arthur v. Insurance Co., 78 N. Y. 462.

It being admitted that the present action was not brought within the stipulated twelve months, it is incumbent on the plaintiff to show some escape from the agreed limitation. Two grounds have been argued with much ingenuity, both depending upon a former action between the same parties. That action' was brought within sixty days of the furnishing of proofs of loss, and was therefore held by this court to be premature : Howard Ins. Co. v. Hocking, 115 Pa. 415. It is now argued, first, that the issue upon which that action was finally decided against plaintiff was not raised in the pleadings when it should have been, so as to afford plaintiff an opportunity to discontinue, and bring a new suit after the sixty days, and still within the stipulated twelve months, but was held back by the defendant until the trial, after the twelve months had elapsed, and therefore that the limitation should be treated as waived. It *181is undoubtedly true that any act which tends to mislead the plaintiff, while parties are dealing on friendly terms, to avoid litigation, will be held to be evidence of a waiver of such a limitation as the present; but after suit has been brought, and the parties are dealing at arms length, the rule does not apply with the same strictness, and much more positive evidence of actual misleading, if not of intent to mislead, is necessary to prove a waiver by estoppel. A defendant, ordinarily, is only bound to make such defence as he thinks sufficient for the pending action. If he chooses to omit some- special defence, he may do so, and take the risk that if he fails on the others, he has thus lost his chance on the omitted ground, but, if he succeeds, he still has it in reserve, in case of a second action. Experience in actions of ejectment affords ample illustration of this practice. In the former action between these parties, the defendant made its defence partly on the ground that the action was premature. The plaintiff, on the other hand, brought and pursued his action on the ground that, as the insurance was on a single building, Ms notice of a total loss was sufficient, and the sixty days had elapsed between such notice and the suit. Each party stood upon his own view of the law, and this court sustained the defence. We fail to see in this anything that can be considered a waiver of the limitation in favor of the present action.

Secondly, it is argued that the sufficiency of the proofs of loss, having been denied by the defendant in the former action, was not really established until the decision of this court; and, as the present action was brought within a year from that decision, it should be held to be within the agreement, by that equity of construction which dates the commencement of the period of limitation from the time a right of action could first accrue, notwithstanding the agreement itself names the date of the fire as the starting-point. See Wood on Insurance, § 469. The argument is extremely ingenious, but it is hardly necessary to go into the question of the equitable construction appealed to. The contention must fail for the same reason as the preceding-one. It is true that the sufficiency of the proofs of loss was, in a certain sense, not established until the decision of this court; but the same may be said of every disputed point in every litigation. The parties stood upon their respective views of the *182law, and on this point the decision was in plaintiff’s favor, but what it decided was the rights of the parties as of the date of the writ.. That the decision did not save the plaintiff’s action was his misfortune, but it certainly did not give him a new starting-point for his period of limitation under the agreement, any more than it would have done so under a statute, had the statutory period been fully run when the court held the first action premature.

It may be hard for the plaintiff to lose his case on this single point, after an apparent victory on the merits; but his agreement is explicit and unavoidable, and to sustain this action in the face of it would be to substitute a new contract for the one which the parties have lawfully made for themselves. That is not'the duty or the province of courts.

The defendant’s point should have been affirmed, and verdict directed for defendant.

Judgment reversed.