Davis v. United States Fire Ins. Co.*

• Decision Date: 08 April 1931
• Docket Number: No. 3555.,3555.
• Citation: 298 P. 671,35 N.M. 381
• Parties: DAVISv.UNITED STATES FIRE INS. CO.*
• Court: New Mexico Supreme Court

35 N.M. 381

298 P. 671

DAVIS

v.UNITED STATES FIRE INS. CO.*

No. 3555.

Supreme Court of New Mexico.

April 8, 1931.

Syllabus by the Court.

Limitation contained in fire policy issued before enactment of statute adopting standard policy was contractual limitation, to which statute permitting new suit within six months after former suit failed did not apply (Comp. St. 1929, §§ 71-166, 83-110).

Assuming that 1929 Comp., § 71-166, requiring New York standard form of insurance policy, creates a statutory twelve months' limitation on suits, it has no such effect on policies issued prior to January 1, 1926, and such limitation in an earlier policy is contractual.

Offer of proof is essential to preserve error on exclusion of evidence.

Offer of proof is essential to preservation of error on exclusion of evidence.

Appeal from District Court, Bernalillo County; Helmick, Judge.

Suit by Roy C. Davis against the United States Fire Insurance Company. Judgment for defendant, and plaintiff appeals.

Affirmed, and cause remanded.

Limitation contained in fire policy issued before enactment of statute adopting standard policy was contractual limitation, to which statute permitting new suit within six months after former suit failed did not apply. Comp.St.1929, §§ 71-166, 83-110.

J. Lewis Clark, of Estancia, and E. W. Dobson, of Albuquerque, for appellant.

Reid, Hervey & Iden, of Albuquerque, for appellee.

WATSON, J.

Appellant commenced this suit November 21, 1927, upon a policy of insurance dated February 3, 1925, for a fire loss occurring December 24, 1925. Verdict was for the appellee, directed by the court upon the ground that the action was barred by the policy provision that no suit should be sustainable unless commenced within twelve months next after the fire.

[1] Appellant contends that the court erred in thus directing the verdict. He relies upon 1929 Comp., § 83-110, providing that, “for the purposes herein contemplated” (that is, for the purpose of computing limitations), a new suit commenced within six months after a former suit has failed, for any reason except negligence in prosecution, shall be deemed a continuance of the first. The fact relied upon is that he had sued on this policy in the federal court May 5, 1926, and that that suit had been dismissed November 21, 1927, for lack of jurisdiction.

Appellant admits that under the authorities 1929 Comp., § 83-110, would not be applicable if the limitation relied upon was merely contractual. He contends, however, that the twelve months' limitation in insurance policies is really statutory, since section 66 of our 1925 Insurance Code (1929 Comp., § 71-166) prohibits issuance of any other than the New York standard policy which contains this limitation on suit.

It will be noted that 1929 Comp., § 71-166, was enacted after issuance of the policy in question and before the loss. Upon this fact appellant bases two contentions, both of which he supports by authority. First, that it is not an impairment of the obligation of the contract to extend the limitation period after issuance of the...