Davis v. U.S. Health & Accident Co.

• Decision Date: 05 December 1905
• Citation: 62 A. 728,73 N.H. 425
• Parties: DAVIS v. UNITED STATES HEALTH & ACCIDENT CO.
• Court: New Hampshire Supreme Court

62 A. 728

73 N.H. 425

DAVIS

v. UNITED STATES HEALTH & ACCIDENT CO.

Supreme Court of New Hampshire. Hillsboro.

Dec. 5, 1905.

Transferred from Superior Court; Peaslee, Judge.

Action by James A. Davis against the United States Health & Accident Company. From a judgment of nonsuit, plaintiff excepted. Exception overruled.

No proof of loss was given to the defendant as required in the policy, but the plaintiff claimed the defendant waived the right to insist upon a formal proof. It was provided in the policy that "no action at law shall be maintainable before three months or after six months from the date on which this policy requires proof of loss to be filed." The action was begun within three months of that time. The defendant's motion for a nonsuit was granted, and the plaintiff excepted.

David W. Perkins, for plaintiff. John O'Neill, for defendant.

WALKER, J. In Tasker v. Insurance Co., 58 N. H. 469, it was held that a condition in a policy of fire insurance that no recovery shall be had unless suit is brought within a given time is valid at common law. Id., 59 N. H. 438, 445. Although the Legislature has to some extent modified or changed this common-law rule with reference to suits upon policies of fire insurance (Laws 1879, p. 336, c. 13; Tub. St. 1901, c. 170, § 18; Franklin v. Insurance Co., 70 N. H. 251, 257, 47 Atl. 91), it is not claimed that the parties to a contract of indemnity against sickness could not bind themselves by a stipulation limiting the time before which or after which an action might be begun for the recovery of the benefit (Dwyer v. Insurance Co., 72 N. H. 572, 573, 58 Atl. 502). As it was competent for the parties to so agree, and as there is no suggestion of fraud practiced by the defendant to induce the plaintiff to enter into the contract, he became bound thereby. Nor, if it is assumed that the defendant waived the provision requiring formal proof of loss, can it be inferred that it also waived the provision protecting itself from an action at law for three months from the time when the proof should be filed under the terms of the contract. The policy provided a definite time when the proof should be filed, and the fact that it was not filed at that time had no necessary effect upon the limitation of time for the bringing of a suit. The waiver of one condition does not involve the waiver of the other. As the plaintiff had voluntarily agreed not to sue the defendant at the time this action was begun, and as the...