Va. Fire & Marine Insurance v. Aiken

Lewis, P. (after stating the case), delivered the opinion of the court. The question as to the validity of a condition in a policy of insurance that suit upon the policy shall not be brought, unless commenced within a stipulated time, less than the period [431] prescribed by the statute of limitations, is well settled. Such a condition was sustained by the Supreme Court of the United States in Riddlesbarger v. Hartford Ins. Co., 7 Wall. 386, and to the same effect are numerous decisions of State courts of last resort. Wood on Fire Insurance, sec. 434, and cases cited. The real, and indeed, the single, question in the case is as to the effect of the written waiver, of the 11th of February, 1885, set out in the replication to defendant’s plea No. 2. On that day only seven days remained of the six months’ limitation contracted for in the body of the policy, and the defendant contends that the intention of the parties, and the effect of the language used in the written waiver, was merely to extend the time within which an action might be brought for thirty days from that date; that is, to add to the stipulated limitation twenty-three days, and no more. But we cannot concur in this view. If such had been the intention of the parties, it is quite probable it would haVe been expressed in terms unambiguous and too plain to be misunderstood; like, for example, the following: “ The time within which an action may be brought on the within policy is hereby extended for thirty days from this date,” or words to that effect. But no such language was used; and the language employed cannot be reasonably construed to have that effect. It is: “ The provisions in this policy, &c., is hereby waived for thirty days from this date.” “The provision” is waived; that is, the provision limiting the time for suit is suspended for thirty days, the effect of which was that the six months limitation ceased to run for thirty days, and began to run again at the expiration of that time, when seven days remained of the time stipulated for in the policy. According to Worcester, waive is to relinquish; to put off; to abandon. According to Webster, it is to relinquish; not to insist on or claim. So that when, on the 11th of February, 1885, the parties agreed to waive the provision in the policy, [432] they agreed to relinquish or to abandon it for thirty days from that date. In other words, they agreed to suspend its operation for thirty days, or to eliminate it, as it were, from the policy for that period. Had the agreement, in the precise terms in which it is expressed, been entered into on the day of the alleged loss, when there were six months within which an action might have been brought, clearly it would either have had the effect already indicated, or it would have been meaningless and inoperative; and it could not be construed to be the latter, consistently with the rule ut res valeat, &c. And if its effect, on the 18th of August, 1884, would have been to suspend the operation of the provision in question, why should its effect be different because it was entered into on the 11th of February, 1885? We are not informed by the record what were the circumstances surrounding the parties at the time the agreement was entered into; but it is fairly inferable, from its language, that the intention was to give the plaintiff an additional period of thirty days within which to sue, if he should be so advised. But to the seven days next succeeding the date of the agreement the plaintiff was already entitled by virtue of his contract, and consequent^ they could not be conceded as a favor by the defendant. Hence, to give effect to the probable intention,of the parties, we must hold that the limitation provision in the policy was suspended for thirty days from the 11th of February, 1885, with seven days to run from the expiration of that period, to wit, from the 13th of March, 1885. The result is that the action was commenced in time, and the judgment of the circuit court must be affirmed. Richardson, J., dissented. Judgment aeeirmed.