| Oh. Circ. Ct., Cuyahoga | Dec 4, 1899
A provision in a life insurance policy that no suit shall be maintained thereon unless such suit shall be commenced within six months-next after the decease of the assured, is valid.
Section 4991, Rev. Stat., has no application to limitations created by contracts and hence has no application to this case.
The two policies of insurance upon which the defendant in 'error predicated their two causes of action, each contained this provision,: “No suit or action at law or in equity shall be maintained with respect, to the payment of this policy until after the filing in the principal office of the company, of the above-mentioned proof of death, nor unless such súit or action shall be commenced within six months next after the decease of the person insured under this policy; and it is expressly agreed that should any such suit or action be commenced after the expiration of said six months, the lapse of time shall be deemed as conclusive evi- . dence against the validity of such claim, any statute of limitations to the contrary notwithstanding.”
This action was commenced six months after the death of the assured and cannot therefore be sustained. The former action, brought by Henry Howie, within six months from the death of the assured, which failed because not brought by the proper plaintiff, does not operate to extend the time in which this action could be brought, either by force of the statute or by a proper construction of the policy. These propositions are sustained by the decided weight of authority. We refer to a few of the cases examined: 103 Iowa, 532" date_filed="1897-10-27" court="Iowa" case_name="Wilhelmi v. Des Moines Insurance">103 Iowa, 532; 18 Atlantic Reporter, 614; 7 Wallace, 386; 27 Vermont, 99; 102 Iowa, 112" date_filed="1897-05-12" court="Iowa" case_name="Harrison v. Hartford Fire Insurance">102 Iowa, 112.
The case relied on by the defendants in error, reported in 2nd Dis., 128, is not in conflict with the above cases cited. The language of the policy under construction in that case, was essentially different from the conditions of the policy here involved, and was so recognized by the court. Judge Spencer, in speaking for the court on page 137 of the decision, discusses the difference in legal effect, of that policy and of a policy having a condition expressed in the language of this policy.
It follows that the court erred in refusing to give the jury requests T and 2, and in the instructions given to the jury, upon the subject of the effect of the bringing of the first action.
The judgment,of the court of common pleas is reversed, and the cause remanded for further proceedings.