Appel v. Insurance Co.

• Decision Date: 26 February 1907
• Docket Number: 10015
• Citation: 76 Ohio St. 52,80 N.E. 955
• Parties: Appel, Administrator, Etc., v. Cooper Insurance Company.
• Court: Ohio Supreme Court

80 N.E. 955

76 Ohio St. 52

Appel, Administrator, Etc., v. Cooper Insurance Company.

No. 10015

Supreme Court of Ohio

February 26, 1907

Contract of insurance may limit time for suit thereon - Provision in policy against action for recovery until compliance with certain requirements - Is unambiguous, when - Provision that suit must be commenced within six months after the fire - Period of limitation runs from date of fire - Interpretation of contract - Fire insurance policy.

1. The parties to a contract of insurance may, by a provision inserted in the policy, lawfully limit the time within which suit may be brought thereon, provided the period of limitation fixed be not unreasonable.

2. A provision in a policy of fire insurance that, "no suit or action on this policy, for the recovery of any claim shall be sustainable in any court of law or equity until after full compliance by the insured with all the foregoing requirements, nor unless commenced within six months next after the fire," is unambiguous, and in a suit on the policy commenced more than six months after the date of the fire, will be enforced in accordance with the plain meaning of its terms, where no extrinsic facts are alleged excusing delay in bringing the suit.

3. Where a policy of fire insurance contains the provision, that no suit or action shall be sustained thereon unless commenced within six months next after the fire, the period of limitation begins to run from the date of the fire notwithstanding the policy also contains the provision "that the loss shall not be payable until sixty days after proofs of loss have been received by the company."

On the 19th day of June, 1901, the Cooper Insurance Company of Dayton, Ohio, issued a policy of insurance to Emily Appel whereby it insured her against all direct loss or damage by fire to an amount not exceeding fifteen hundred dollars, for the period of one year from the 19th day of June, 1901, to the 19th day of June, 1902, at noon, upon certain property described and located as follows: "On merchandise, principally millinery goods, manufactured and in process, and materials used in manufacturing same, owned or held in trust or on commission, or sold but not removed while contained in the brick, metal-roof building occupied by assured as a manufacturer and wholesale and retail milliner, at No. 312 on the north side of Fourth street between Plum street and Central avenue, Cincinnati, Ohio." It was by said policy of insurance among other things provided:

"That if a fire occur the insured shall give immediate notice of the loss; separate the damaged and undamaged personal property; make an inventory of the same; and within sixty days after the fire make proof of loss. And further in the event of disagreement as to the amount of loss the same shall be ascertained by two competent and disinterested appraisers, the insured and said company each selecting one appraiser, and the two so chosen shall select a competent and disinterested umpire; the said appraisers together shall estimate and appraise the loss stating separately sound value and damage, and, failing to agree, shall submit their differences to the umpire; and the award in writing of any two shall be binding upon both parties as to the amount of such loss, and further that the loss shall not become payable until sixty days after the proof of loss has been received by the company, including an award by appraisers when appraisal has been required." Said policy contained the further provision that: "No suit or action on this policy for the recovery of any claim, shall be sustained in any court of law or equity until after full compliance by the insured with all the foregoing requirements, nor unless commenced within six months next after the fire." The property insured was damaged by fire which occurred about nine o'clock A. M. on September 9th, 1901. There being a disagreement as to the amount of the loss, the same was, under the terms and provisions of said policy submitted to appraisers on September 18th, 1901, which appraisers duly selected an umpire. Thereafter, a report or award signed by one appraiser and the umpire was made and returned on October 9th, 1901. The proof of loss was filed with the Insurance Company on October 10th, 1901, and thereupon, by the terms of said policy, the amount of said loss became due and payable on December 10th, 1901. Suit was not commenced against the Cooper Insurance Company to recover said loss until June 4th, 1902. After the issues in the case were made up, the cause, by consent of parties, was, by the superior court in special term, referred to Rufus B. Smith, for trial of the issues both of law and fact arising therein, and said referee was ordered to report his findings and decision to said court without unnecessary delay. Thereafter, a separate finding of law and fact having been requested, said referee on July 29, 1905, made his report to said superior court stating therein separately, his findings of fact and his conclusions of law. One of the facts found by the referee was: "That there was due and owing to the plaintiff from the said defendant by reason of the premises the sum of $833.58, with interest from the tenth day of December, 1901." But said referee as a conclusion of law found and decided: "That the plaintiff is not entitled to recover from the said defendant the sum of $833.58, with interest from December tenth, 1901, or any other sum, for the reason that plaintiff did not file his petition on or before six months from the ninth day of September, 1901." Upon the report of the referee being filed in the superior court, the plaintiff in error, Harry Appel, as administrator, etc., moved the court to render judgment for plaintiff against the Insurance Company for the sum of $833.58, with interest as claimed in the petition, on the conclusions of fact found by the referee; or in the alternative, to set aside the report of the referee and grant a new trial for error of law in the finding of the referee that the plaintiff Harry Appel, as administrator, etc., was not entitled to recover from the defendant. This motion was overruled by the superior court in special term and judgment was entered for the Cooper Insurance Company. The case was taken on error to the superior court in general term, which affirmed the judgment of the court in special term. Plaintiff in error now asks that the judgments of the superior court, both in general and special term, be reversed, and that a judgment be entered by this court in favor of the plaintiff in error and against the Cooper Insurance Company, for $833.58, with interest from December 10th, 1901.

Mr. Frank Seinsheimer and Mr. John R. Sayler, for plaintiff in error, cited and commented upon the following authorities:

Travelers' Ins. Co. v. California Ins. Co., 1 N. Da., 151; Metropolitan Life Ins. Co. v. Gierl, 16 C. C., 294; 57 Ohio St. 671; Daly v. Concordia Fire Ins. Co., 65 Pac. Rep., 416, Insurance Co. v. Scales, 101 Tenn. 628; German Ins. Co. v. Davis, 40 Neb. 700; Sample v. London & L. Fire Ins. Co., 46 S. Car., 491; Read & Traversy et al., v. State Ins. Co., 103 Ia. 307; 4 Cooley on Insurance, 3972; Kirk & Co. v. The Ohio Valley Ins. Co., 6 W. L. B., 200; Steel v. Phoenix Ins. Co., 51 F. 715; Fidelity & Casualty Co. v. Love, 111 F. 775; Kettenring v. N.W. Masonic Aid Assn., 96 F. 177; Portage County M. F. Ins. Co. v. West et al., 6 Ohio St. 599; Hogg v. Beerman, 41 Ohio St. 81; Section 5213, Revised Statutes.

Messrs. Cabell & Kohl, for defendant in error, cited and commented upon the following authorities:

Kettenring v. N.W. Masonic Aid Assn., 96 F. 177; Steel v. Phoenix Ins. Co., 51 F. 715; Williams, Receiver, v. German Ins. Co., 90 A.D. 413; Allen v. Dutchess, etc., Ins. Co., 95 A.D. 86; King v. Watertown Fire Ins. Co., 47 Hun, 1; Daly v. Concordia Fire Ins. Co., 16 Col. App., 349; Hart v. Citizens Ins. Co., 86 Wis. 77; Riddlesbarger v. Hartford Ins. Co., 7 Wallace, 386; Thompson, Receiver, v. Phoenix Ins. Co., 25 F. 286; State Ins. Co. v. Meesman, 2 Washington, 459; Kirk & Co. v. Ohio Valley Ins. Co., 6 W. L. B., 200; Meyer v. Metropolitan Life Ins. Co., 9 Ohio Dec., 596; Corn City Mutl. Ins. Co. v. Schwan, Assignee, 1 O. C. D., 105; Coldham v. Pac. Mutl. Life Ins. Co., 2 Ohio Dec., 305, 57 Ohio St. 657; Metropolitan Life Ins. Co. v. Gierl, 16 C. C. 295.

CREW J.

This case is one of a series of cases brought into this court by proceedings in error from the Superior Court of Cincinnati and the question involved is, as to the liability of the defendant company for its proportionate amount of the loss and damage occasioned by fire to a certain stock of millinery goods the property of one Emily Appel, which stock, at the time of the fire, was insured in the defendant company. The facts of this case are not different from those presented and decided by this court in the cases of the Fire Association of Philadelphia, and the...