Chichester, Admr. v. New Hampshire Fire Ins. Co.

Hamersley, J. The provision in the policy sued upon requiring an action to be brought “ within twelve months *513 next after the fire” does not operate as a statute of limitations ; it is a part of the contract; the rights of the parties flow from the contract, and must be governed by the rules of law applicable to contracts. Such a provision in a contract of insurance is valid and binding upon the parties. Woodbury Savings Bank v. Charter Oak Ins. Co., 31 Conn. 517, 529; Cray v. Hartford Fire Ins. Co., 1 Blatch. 280, 289 ; Riddlesbarger v. Hartford Ins. Co., 7 Wall. 386, 391. The insurer’s promise to indemnify is not absolute, but modified by the promise of the insured to commence his action within twelve months. Upon failure to perform this condition the liability of the insurer under the contract ceases to exist; but the remedy of the insured for any cause of action he may have under the contract is not affected, and is governed by the statute of limitations. The performance of the condition to bring suit within the specified time may be waived by the insurer. It may be excused upon the existence of such facts as, by the law of contract, will excuse the performance of such a condition ; as, for instance, by a state of war, which renders it impossible to bring an action within the twelve months. In that event the promise to indemnify remains binding notwithstanding the nonperformance of the condition, and the insured may pursue his remedy for its breach within the time fixed by the statute of limitations. Semmes v. Hartford Ins. Co., 13 Wall. 158, 162. The second defense in the defendant’s answer, setting up the condition in the policy in respect to the time within which an action shall be brought and alleging that this action is not brought within twelve months next after the fire, is, therefore, a complete defense, unless the plaintiff in his reply. alleges facts sufficient in law to excuse his nonperformance of the condition. In his first reply the plaintiff relies upon the fact that he brought an action upon the policy within twelve months after the fire, that in this action he was nonsuited for reasons not touching the merits of his cause, and that the present action was brought immediately afterwards, although not within the time specified in the condition. Such facts do not excuse the nonfulfillment of his contract, Woodbury *514 Savings Bank v. Charter Oak Ins. Co., supra; Riddlesbarger v. Hartford Ins. Co., supra; Hocking v. Howard Ins. Co., 130 Pa. St. 170, 175. The plaintiff’s claim that Chap. 193 of the Public Acts of 1895 authorizes the bringing of this suit within one year after his nonsuit in the former action, is without foundation. That chapter is an amendment to the statute of limitations and does not affect this contract. The plaintiff also insists that Chap. 226 of the Public Acts of 1893, establishing a standard policy of insurance, in some way changes the- agreement of the parties to such a policy into a statute of limitations. The Act clearly has no effect upon the contracts made in accordance with the form therein provided. In his second reply to the second defense the plaintiff relies upon this claim: When the former action was pending it was specially assigned for trial on November 28th, 1899. If it had been then tried the plaintiff would have been non-suited within the year fixed by the condition in his policy and could have commenced a new action within that year; but the defendant, on the day preceding the day on which the case was assigned for trial, obtained a postponement of the trial for several months by means of false and fraudulent representations made to the court with the intent to prevent a trial until said year had expired, in order that the plaintiff, if he should be nonsuited, would be unable to commence another action; so that the defendant, by its own fraud, prevented the plaintiff from performing the condition set up in the second defense, and is therefore estopped from pleading that defense. Assuming for the sake of argument that such a claim might entitle the plaintiff to some equitable relief, it is not supported by the facts alleged in his reply. It appears by the reply itself that the fraudulent representations charged were made more than “ twelve months next after the fire,” and could not have been made with the intent, nor produced the result, claimed by the plaintiff. This whole claim of the plaintiff rests on the assumption that the condition should *515 be construed as requiring an action to be brought within twelve months after the production of satisfactory proofs of loss. Such assumption is unfounded; the condition means what it says, “ twelve months next after the fire.” Chambers v. Atlas Ins. Co., 51 Conn. 17, 18. The court did not err in sustaining the demurrer to the plaintiff’s first reply, and to his second reply to the second defense, for the reasons above given. In his brief the plaintiff criticises the pleading of the defendant in rejoinder to the first reply, because the defendant denies and demurs to the same allegations of fact. It is sufficient that no error of this nature is properly assigned in .the appeal. The second defense alleged that this action was not brought within twelve months next after the fire, as required by the contract sued upon. The defendant demurred specially to the facts alleged in the plaintiff’s first and second replies to this defense; the court properly sustained the demurrer. This defense, unanswered, was wholly inconsistent with any right of action in the plaintiff. The defendant properly moved for judgment, and the court having found in the hearing on that motion that the plaintiff had not made further reply within the time limited by rules of court, and that the plaintiff did not intend to reply further, was justified in rendering judgment for defendant. There is no error in the judgment of the Superior Court. In this opinion the other judges concurred.