Ward v. Pennsylvania Fire Insurance

Whitfield, J., delivered the opinion of the court. The case of Ghio & Co. et al. v. Western Assurance Co. et al., 65 Miss., 532; 5 South., 102, is conclusive of the validity of the stipulation in the policy that no suit should be brought except within one year from the time of the loss. The case of Riddlesberger v. Hartford Fire Ins. Co., 7 Wall., 386; 19 L.Ed., 257, settles two propositions: First, that where there is a valid contract stipulation as to the time within which suit must be brought, statutory provisions cannot enlarge that time; and, second, that “the specified contract period is not extended for purposes of a second action by an action commenced within time, but which failed to be prosecuted to judgment.” In other words, the action which must be brought within the specified contract period is the action which shall afterwards be prosecuted to judgment. See vol. 19 of the Lawyers Edition of the United States Supreme Court Reports, at page 257, for the case of Riddlesberger v. Hartford Fire Ins. Co., and page 908 of Rose’s notes for the citations of this case in subsequent cases of the United States Supreme Court affirming the two propositions above; these notes of Mr. Rose being incorporated in said volume 19 at end of 7 Wallace as therein reported. Section 2756 of the Annotated Code of 1892 has no application to a contract which fixes its own period of limitation as to time within which a suit may be brought. And section 2758a embraces only those eases where a plaintiff is “prohibited by law,” etc., “from commencing or prosecuting an action,” and, of course, has no application to a case like this, where the plaintiff was not “prohibited by-law from commencing or prosecuting his action,” but dismissed his suit voluntarily, because he had willfully violated the law himself in not paying the proper privilege tax. To hold the plaintiff entitled to the protection of this section would be to put a premium upon willful violation of law. Affirmed.