Bradley v. Phoenix Ins. Co.

• Decision Date: 21 November 1887
• Citation: 28 Mo.App. 7
• Parties: THOMAS G. BRADLEY, Appellant, v. THE PHŒ NIX INSURANCE COMPANY, Respondent.
• Court: Kansas Court of Appeals

28 Mo.App. 7

THOMAS G. BRADLEY, Appellant, v. THE PHΠNIX INSURANCE COMPANY, Respondent.

Court of Appeals of Missouri, Kansas City.

November 21, 1887

APPEAL from Johnson Circuit Court, HON. CHAS. W. SLOAN, Judge.

Affirmed.

The case is stated in the opinion.

SAMUEL P. SPARKS, for the appellant.

I. The court erred in refusing appellant's motion to make answer definite, by striking out the allegation " denies each and every other allegation not hereinafter specifically admitted." Long v. Long, 79 Mo. 649.

II. The court erred in refusing the motion to strike out the defence based on the limitation clause of the policy. Courts ought not to allow a party to amend for the purpose of setting up an unconscionable defence. Bliss on Code Pleading, sect. 431. Such a limitation is now void. Laws of Mo. 1887, p. 99. The provision is for the benefit of the insurer and could be waived and was waived here by failing to plead it and defending on other grounds. Bliss on Life Ins., sect. 265; Wood on Limitations, sect. 42; May on Ins., sect. 488; 2 Wood on Ins., sect. 470; Horwitz v. Ins. Co., 40 Mo. 557; Beische v. Ins. Co., 31 Mo. 546.

III. The same rules govern, in the construction and interpretation of an insurance contract, as in other contracts, all its clauses must be construed together, and effect, if possible be given to each. Mitchell Furn. Co. v. Ins. Co., 17 Mo.App. 627; Webb v. Ins. Co., 14 Mo. 8; Riddlesberger v. Ins. Co., 7 Wall. 389; Vette v Ins. Co., 30 F. 668; 1 Wood on Fire Ins., sect. 58; 2 Wood on Fire Ins., sect. 470, p. 1036; Tesson v. Ins Co., 40 Mo. 33; Brown v. Ins. Co., 45 Mo. 221; Wells, Fargo & Co. v. Pac. Ins. Co., 44 Col. 397.

IV. Giving effect to all the provisions of the policy--the limitation of six months in which the insured was required to bring suit did not begin to run until sixty days after the filing of the proofs in the Chicago office of respondent, and it was error to sustain the motion of respondent for judgment on the pleadings. Vette v. Ins. Co., 30 F. 668; Steen v. Ins. Co., 89 N.Y. 315; Mayor v. Ins. Co., 39 N.Y. 45; Spare v. Ins. Co., 17 F. 568; Chandler v. Ins. Co., 21 Minn. 85; May on Ins., sects. 479, 487; 2 Wood on Ins., sects. 469, 470; Martin v. Ins. Co., 44 N.J.L. 485; Ins. Co. v. Dodge, 44 Mich. 420; Ames v. Ins. Co., 14 N.Y. 253; Hay v. Ins. Co., 77 N.Y. 235; DeGrove v. Ins. Co., 61 N.Y. 594; Barber v. Ins. Co., 16 W. Va.; Chandler v. Ins. Co., 21 Minn.; S. C., 3 Cent. Law Jour., and authorities cited; Killips v. Ins. Co., 28 Wis. 472, 474; Ellis v. Ins. Co., 20 N.W. 782 [Iowa] ; see leading article, 21 C. L. J. 24; Bliss on Life Ins. [Ed. 1872] sects. 358 to 368.

V. No suit could have been maintained on this policy until sixty days after the receipt of the proof of loss in the Chicago office. Appellant's petition averred the fire occurred September 26, 1885; the replication that the proofs were received in Chicago December 24, 1885. As to when the limitation commences to run in a policy of this description has never been decided in this state. In 66 Mo. 32 and 42 Mo. 38, all that was decided, or up for decision, was the validity of such limitation, and nothing more, about which there is no contention.

VI. The company, by consenting to the assignment to the Connecticut Mutual Life Insurance Company, thereby consented to, and ratified, the act of appellant's assignor in putting it out of his power to sue until the payment of the amount due it, and the limitation clause did not begin to run until he had re-acquired the right to sue. Martin v. Ins. Co., 44 N.J.L. 480.

J. W. SUDDATH and GEO. P. B. JACKSON, for the respondent.

I. ( a ) The answer was clear and specific and in accordance with the statute. It did not fall within the criticism of Long v. Long (79 Mo. 649). (b ) The answer was good in form. Griffin v. Railroad, 2 Central Rep. 382; Clark v. Dillon, 97 N.Y. 370; Bliss on Code Pleading [Ed. 1879] sect. 331, p. 331. ( c ) In view of the subsequent proceedings, it is immaterial whether the defendant's denials were stricken out of the answer or allowed to remain.

II. ( a ) The court permitted the amended answer to be filed in accordance with the statute authorizing amendments, and, therefore, it was not proper to strike out any portion of it, even if it was an amendment. The other parts of plaintiff's second motion are the converse of defendant's, and raise the same questions. That motion was properly overruled for the reasons stated in the next point, and because (b ) under a rule, " of course," as provided by Revised Statutes, section 3571, any defence whatever may be included in an amended answer. Corley v. McKay, 9 Mo.App. 39, loc. cit. 41; McQueen v. Babcock, 42 N.Y. App. [3 Keyes] 428; Jackson v. Peer, 4 Cowan 418, loc. cit. 434; Bliss on Code Pleading [Ed. 1879] sects. 430-31; Moak's Van Santvoord's Pleading [Ed. 1873] 821, 822, 830.

III. The court properly sustained the motion for judgment on the pleadings. The reply admitted every fact which entitled the defendant to judgment. The six months, within which suit was to be brought, commenced to run from the day the loss occurred, and not from the time at which it was payable. This was a valid contractual provision, to be enforced as the parties had made it. Keim v. Ins. Co., 42 Mo. 38; Glass v. Walker, 66 Mo. 32; Johnson v. Ins. Co., 91 Ill. 92; Fullman v. Ins. Co., 7 Gray 61; Patrick v. Ins. Co., 43 N.H. 621. It is not necessary that under all circumstances the suit must be delayed until after time named for payment. Phillip v. Ins. Co., 14 Mo. 220.

IV. The defendant had not waived this defence. To constitute a waiver there must have been some consideration, or some act inducing delay to sue, and in that connection there should have been some reference to the condition and to the time of suing. Ripley v. Ins. Co., 20 N.Y. 136. There must have been bad faith, or acts preventing suit, or inducing belief that it was unnecessary. Fullman v. Ins. Co., 7 Gray 61; Little v. Ins. Co., 123 Mass. 380. Making an investigation, and offer to pay, did not waive any condition when timely notice was given that a performance was required. Noonan v. Ins. Co., 21 Mo. 81.

PHILIPS P. J.

This is an action to recover on an insurance policy for loss sustained by fire. The loss is alleged in the petition to have occurred on the twenty-sixth day of September, 1885. The answer pleaded several matters in defence, predicated on provisions contained in the contract of insurance, principal among which is this: It was made a condition in said policy, that no suit or action against the company should be sustainable in any court of law or chancery for the recovery of any claim by virtue of this policy, unless such suit or action shall be commenced within six months next after the loss shall occur, and should any suit or action be commenced against this company after the expiration of the aforesaid six months, the lapse of time shall be taken and deemed as conclusive evidence against the validity of such claim, any statute of limitation to the contrary, notwithstanding. It is averred in the answer that this action was not commenced within the prescribed period of six months after the loss occurred. The replication admitted this allegation of the answer; but pleaded by way of legal conclusion, that by the terms aforesaid the loss did not become due and payable until after sixty days from the receipt of the proofs of loss at the Chicago office of defendant, which was about the twenty-second day of December, 1885; and that defendant, on receipt of the same, made no objection thereto, and promised the assured that the loss would be speedily adjusted, until about the twenty-fifth day of January, 1886, when the assured, for value received, assigned the said claim to the plaintiff herein, who immediately informed the defendant of such assignment, and that defendant, on or about the fifteenth day of February, 1886, refused payment to the plaintiff, on the ground of failure to make proof of loss, and give notice thereof, as required by the terms of the policy, and that there had been fraud practiced upon the company by the assured as to the condition of the property insured, etc.; and that the assured delayed bringing suit, under the belief induced by the conduct of the defendant that it would adjust the loss, down to the sixteenth day of January, 1886, when the company notified the assured, plaintiff's assignor, of its refusal to pay, which refusal was based on the alleged fraud of the assured in misrepresenting the condition of the property, etc. On this reply the defendant moved for judgment, on the ground that the action was barred by the lapse of time specified in the policy, the action not having been instituted until the twenty-second day of May, 1886, more than six months after the said loss occurred. The court sustained this motion, and entered judgment accordingly for defendant. Plaintiff has appealed. Some preliminary questions are raised by defendant respecting the proceedings had in the trial court, prior to the motion for judgment, which will be disposed of in their order.

I. The answer was objected to because it started out with a denial of " each and every allegation therein set forth, which is not hereinafter specifically admitted." We adhere to what is said in Long v. Long (79 Mo. 649), touching this matter of pleading. But without stopping to inquire whether or not the answer under review falls under the denunciation of that opinion, it is sufficient to say, that as the determination of this case finally turns upon the facts admitted in the pleadings, it is wholly immaterial to rectify the imputed defect.

II. On filing the answer, which purports to be an amended answer the plaintiff filed motion to strike out that portion of it...