Moore v. State Ins.

Oct 6, 1887
Reporters:
,
Before:
Beck
Beck, J.

I. The original notice of the commencement of the action was served February 11, 1886, and the petition was filed on the 17th of the same month. The policy in *415suit, a copy of which is made an exhibit to the petition, contains these, among other, conditions : “ It is hereby agreed that no suit shall be brought for loss under this policy unless commenced within six months of the date of the loss ; any statute or limitation to the contrary notwithstanding.” “ This policy is made and accepted by the assured on the above conditions and stipulations hereto annexed, which are to be used and resorted to in order to explain the rights and obligations of the parties hereto.” The petition shows that the loss occurred August 29, 1884, and there is no allegation of facts intended to waive the conditions just quoted, or to take the action out of the bar raised thereby. The defendant demurred to the petition on the ground that it fails to show a cause of action, for the reason that the suit was not commenced within the time prescribed by the condition of the policy. The demurrer was sustained.

1. fire iusur-anee: policy limiting time public policy • stare decisis. II. This court has in repeated decisions recognized the right of parties to policies of insurance to limit, by conditions therein, the time in which actions may be brought to- recover for losses of property insured, & i r </ ? an<^> sustaining such conditions, has held actions ]}ari.e(j thereunder. This must be regarded as the settled doctrine of this court. Carter v. Humboldt Fire Ins. Co., 12 Iowa, 287 ; Stout v. City Fire Ins. Co. of New Haven, Id., 371; Longhurst v. Star Ins. Co., 19 Id., 370 ; Mickey v. Burlington Ins. Co., 35 Id., 175 ; Ellis v. Council Bluffs Ins. Co., 64 Id., 507; Garretson v. Hawkeye Ins. Co., 65 Id., 468 ; Eggleston v. Council Bluffs Ins. Co., Id., 308; Cornett v. Phœnix Ins. Co., 67 Id., 388 ; Bish v. Hawkeye Ins. Co., 69 Id., 184. Counsel for plaintiff present an elaborate and able argument in support of the position that the condition of the policy limiting the time within which an action may be brought thereon is against public policy, and is therefore void. They cite many authorities, and present many weighty arguments, in support of their position, which we cannot consider, in *416•view of our conclusion that the contrary rule is settled by the decisions of this court, and that we cannot now disturb it.

2. — :-: suredí by as” III. Counsel insist that the conditions of the policy in question are void for the reason that they were not assented toby plaintiff. The policy is a unilateral contract, and its acceptance by plaintiff operates as an‘assent to the conditions intended to bind him. These conditions are as obligatory upon him as though he had signed the policy.

3iimiñarypre’ mergeaeinS poiioy. IY. Counsel argue, as we understand them, that the preliminary agreement of the parties constituted a contract of insurance, and we infer that they further claim that this preliminary agreement did not contain the conditions in question in this action. It is sufficient to say that the terms of this preliminary agreement are not set out in the pleadings. We therefore do not know what they were. And, if there was such a preliminary agreement as counsel claim, its terms and conditions were superseded by the policy, which is the final contract showing the meeting of the minds of the parties. We must enforce it, and not the preliminary agreement.

4. -: ae-oy’^barredRy poney:°de-of murrer. Y. It is insisted by plaintiff’s counsel that the question whether the action is barred by the terms of the policy cannot be raised by demurrer. The condition lim-J a°tion is in the policy itself, made a Par^ petition, which’ shows on its, face when the action was commenced by the filing thereof. It therefore appears by the petition that plaintiff1 is not entitled to the relief claimed, — a ground of demurrer prescribed by Code, § 2648, subd. S. See Carter v. Humboldt Fire Ins. Co., supra.

The foregoing discussion disposes of all the questions in the case. The judgment of the circuit court is

Affirmed.