Fireman's Fund Insurance v. Buckstaff

Nohval, J. This record presents one question not raised, nor considered in the cases of the German-American Ins. Co. v. Buckstaff, 38 Neb., 135, and Liverpool & London & Globe Ins. Co. v. Buckstaff, 38 Neb., 146, and that is, whether the action is barred by the terms of the policy. One of the stipulations in the policy is as follows: “ It is furthermore hereby expressly provided •and mutually agreed that no suit or action against this company for the recovery of any claim by virtue of this policy shall be sustained in any court of law or chancery * * * unless such suit or action shall be commenced within six months after the occurrence of the fire by reason of ■which the claim for loss or damage is made; and should any suit or action be commenced against this company after the expiration of the aforesaid six months, lapse of time shall be taken and deemed as conclusive evidence against the validity of such claim, any statute of limitations to the contrary notwithstanding.” The policy also provides that the loss is not payable until sixty days after the proofs of loss have been received by the company at its office in Chicago, Illinois. It appears that such proofs were furnished November 3, 1887; that the fire occurred on the 2lst day of October of the same year, and this action was begun on the 4th day of May, 1888. When did the period of limitation commence to run ? The identical question was before the court in German Ins. Co. v. Fairbank, 32 Neb., 750. It was there held that the limitation commenced to run from the time the loss is due and payable. Following that case, and the numerous authorities cited in the opinion, we must hold that the plaintiff’s cause of action did not accrue until the expiration of-sixty days after the proofs of loss were received by the company, and the action having been instituted within six [152] months after the expiration of this sixty days, the suit was not barred. This case was decided in the district court upon the evidence adduced on the trial of the German-American Insurance Company against this defendant in error, and upon which the decision was based in the Liverpool & London & Globe Insurance Company case. Eor the reasons stated in the opinion filed herewith in the latter case, the same judgment will be entered in this. Judgment affirmed.