Taylor v. Farmers Fire Insurance

McLean, J., delivered the opinion of the court. The appellant brought suit on a fire insurance policy issued by appellee. The defendant, among other pleas, pleaded that there was a provision in the policy to the effect that no suit or action on the policy for the recovery of any claim shall be sustainable, unless commenced within twelve months next after the fire. The plaintiff demurred to this plea. The demurrer being overruled, plaintiff declined to reply, and judgment was entered for the defendant. The distinguished gentleman who presided as special judge in the court below delivered the following opinion: “This matter is submitted on the demurrer to the defendant’s fifth plea, which sets up the bar for one year provided in the policy as a defense to the declaration. The question submitted involves the construction of section 2575 of the Code of 1906, which is in the following language: ‘No company shall make any condition or stipulation in its insurance contract concerning the court of jurisdiction wherein any suit thereon may be brought, nor shall they limit the time within which such suit may be commenced to less than one year after the loss or injury, and any such condition or stipulation shall be void.’ Section 3127 provides as follows: ‘The limitations prescribed in this chapter shall not be changed in any way whatsoever by contract between parties, and any change in such limitations made by any [489] contract stipulation whatsoever shall be absolutely null and void, the object of this statute being to'make the period of limitations for the various causes of action the same for all litigants.’ Does section 3127, supra, repeal section 2575? I think not. The two statutes were passed pari passu. The Code was adopted at the same time as far as these chapters are concerned. These two statutes must be construed, if possible, so as to permit both to stand, as repeals by implication are not favored by the courts. The insurance chapter is a chapter distinct by itself. Section 3127 by its terms says: 'The limitations prescribed in this chapter shall not be changed,’ etc. The limitation in section 2575 is entirely a distinct chapter, and it was in regard to a sub-' ject that was the object of special legislation. It is contended that section 2575 does not give a positive right to an insurance company to contract for a shorter period for bringing suit on its policy than the periods of limitation prescribed in chapter 87, section 3127; but, if any effect is to be given to the language in section 2575, it must be that the right is given by necessary implication to insurance companies to contract for a period of limitations not less than one year. I conceive that section 2575 is to be construed as if it read 'insurance companies shall have a right to contract that no suit shall be brought upon its policy after the expiration of one year from the loss or injury. ’\ In this connection I call attention to section 3126 of the Code, which is as follows: ' The provisions of this chapter shall not apply to any suit which is or shall be limited by any statute to be brought within a shorter period than is prescribed in this chapter, but such suit shall be brought within the time that may be limited by such statute.’ Section 2575 of chapter 69, having said in substance, as I construe it, that suits upon insurance policies shall not be brought after the expiration of one year from the date of loss or injury, and section 3126, chapter 87, having held this [490] permissible, judgment is that the demurrer to the fifth plea be and.is hereby overruled.” We fully concur in this most excellent exposition of the law in this case. Appellant earnestly contends that section 2575 of the Code of 1906 is unconstitutional, in this: That it conflicts with section 87 of the Constitution of 1890, which prescribes that “no special or local law shall be enacted for the benefit of individuals or corporations, in’cases which are, or can be provided, for by general law, or where the relief sought can be given by any court of this state; nor shall the operation of any general law be suspended by the legislature for the benefit of any individual or private corporation or association, and in all cases where a general law can be made applicable and would be advantageous, and no special law shall be enacted. ’ ’ We confess, without entering into a full discussion, our inability to appreciate the argument of appellant upon this proposition. Affirmed.