Phenix Insurance v. Belt Railway Co.

Mr. Presiding Justice Windes delivered the opinion of the court. The principal question presented is as to whether the one year limitation in the policy against bringing suit, defeats this action. Other minor questions, viz., the waiver of proofs of loss, that the property destroyed was not covered by the policy, and that the court erred in the admission and exclusion of evidence, are made, but do not seem to be specially relied on by counsel. It is contended by appellee that, for certain technical reasons enumerated, the defense of the limitation clause in the policy can not be considered. We think otherwise. It is also claimed that the limitation clause is void because it is coupled with a provision to arbitrate before bringing the action. The New York and New Hampshire cases cited by counsel seem to support this contention, but we think the provisions of-the policy sued on as to award are such that if followed in good faith by the company, they would not render the limitation clause void. Johnson v. Ins. Co., 91 Ill. 92. No doubt if the company should fraudulently use the provisions of the policy relating, to award in such way as to prevent an award being made within the time limited by the policy for bringing suit, such action could properly be held to render nugatory the limitation clause. The limitation clause in the policy, while not favored by the courts, is a defense to this action, unless the replication is sufficient to avoid such defense. May on Ins., Sec. 488; Ins. Co. v. Chestnut, 50 Ill. 111-7; Home Ins. Co. v. Meyer, 93 Ill. 271-6; Hay v. Star Fire Ins. Co., 77 N. Y. 235-41; Chandler v. Ins. Co., 21 Minn. 85. Has appellant waived this defense or is it estopped from making it % Appellant claims that certain matters alleged in the plaintiff’s replication are not shown by the evidence, but it is not and can not be denied that a former suit for the same cause of action was commenced on October 13, 1893, which was within the period of limitation in the policy; that during the pendency of this suit, and after the limitation had expired, appellant entered into a stipulation waiving a jury and setting the case for trial before Judge Payne; that by stipulation the date of such trial was changed from time to time, and that upon appellant’s motion, and by reason of the illness of its attorney, the hearing of the cause was continued from June 25, 1895, until after vacation of the court, and that while the stipulation waiving a jury and agreeing to try the case before Judge Payne was still in force, the case was placed on the trial calendar of Judge Sears, without notice to appellee, and by the latter judge dismissed, also without notice to appellee, and it had no notice of such dismissal until after the term at which the dismissal was entered had expired, and that appellant and its counsel refused to consent to set aside the order of dismissal. In order that such a defense may be considered waived, or the insurance company debarred from making it, though not in a strict sense estopped by acts in pais, strong proof is not required of waiver, nor is it necessary that the proof should establish facts equivalent to a technical estoppel, but only such facts as would make it unjust, inequitable or unconscionable to allow the defense to be interposed. Chandler and Hay cases, supra; Maltman v. R. R. Co., 72 Ill. App. 378-86, and cases there cited; German F. Ins. Co. v. Grunert, 112 Ill. 68-76. We are of opinion, in view of the uncontro'verted facts stated and the authorities cited, that it would be unjust and unconscionable to allow appellant to interpose the limitation in the contract. Appellant’s conduct, after stipulating to try the case without a jury before a particular judge, and securing a postponement of the trial by reason of the illness of its attorney, and refusing to reinstate the case after it had been dismissed for want of prosecution by another judge, without notice to appellee and after the lapse of the term, seems so far from good faith and fair dealing that it may be characterized as unjust and inequitable; and while it does not include all the elements of an estoppel m pais, it may be regarded, as said by the Supreme Court in the Meyer case, supra, as a “ sufficient excuse for non-compliance with the provision of a policy requiring suit to be brought within a stipulated time.” The same is true as to the claim that notice or proofs of loss were not made within thirty days from the first three fires. The evidence is not very clear as to the exact date when appellant, through its agent, repudiated liability under the policy by claiming that it did not cover foreign cars, but we think it is sufficient to justify the conclusion that all liability was repudiated within thirty days of each of these losses, and that was a sufficient waiver of notice of proofs of loss. Grange Mill Co. v. Wes. Ins. Co., 118 Ill. 396-401; German F. Ins. Co. v. Grueck, 130 Ill. 345-51; Kimmel v. Ins. Co., 161 Ill. 43-7. That-the language of the schedule in the policy, viz., “on rolling stock as described below, or leased, and for which the assured is liable, which is to be covered wherever it may be,” etc., and describing box, coal, flat and refrigerator cars, is sufficient to cover foreign cars, that being the kind included in the several losses, when construed in the light of the character of appellee’s business, being that of a general transfer business for other railroad companies, and that appellee owned but a few flat cars, all of which was known to and discussed by appellee’s officers with appellant’s agent when the policy was solicited and written, is clear, as we regard it, and beyond controversy. A policy similar in its terms was considered by the Supreme Court in Home Ins. Co. v. N. P. Ry. Co., 178 Ill. 64, in'which it was held that the words, “for which the assured are or may be liable,” were sufficient to cover cars of other railroad companies which came into the possession of the assured, to be by it transferred and stored in consideration' of certain charges -made. The cars in question here came to the possession of appellee in its business of transferring the cars of other railway companies. The only remaining question is as to the admission and exclusion of certain evidence, and that the proof of the amount of loss is insufficient. We have considered each of appellant’s contentions in these respects, and are of opinion none of them present any reversbile error. It would needlessly extend this opinion to discuss them in detail. _ The judgment is affirmed.