Dickirson v. Pacific Must. Life Ins. Co.
| Decision Date | 03 February 1926 |
| Docket Number | No. 16683.,16683. |
| Citation | 319 Ill. 311,150 N.E. 256 |
| Parties | DICKIRSON v. PACIFIC MUST. LIFE INS. CO. |
| Court | Illinois Supreme Court |
OPINION TEXT STARTS HERE
Action by W. P. Dickirson against the Pacific Mutual Life Insurance Company. Judgment for plaintiff was affirmed by the Appellate Court, and defendant brings error.
Reversed.
Error to Appellate Court, Fourth District, on Appeal from Circuit Court, Lawrence County; Julius C. Kern, Judge.
Wilson, McIlvaine, Hale & Templeton, of Chicago, and McGaughey, Tohill & McGaughey, of Lawrenceville (Noah M. Tohill, of Lawrenceville, and J. E. Dammann, Jr., of Chicago, of counsel), for plaintiff in error.
Summer & Lewis, of Lawrenceville, for defendant in error.
Plaintiff in error, on writ of certiorari being allowed, brings for review a judgment of the Appellate Court affirming a judgment against it on two certain accident insurance policies for the sums of $5,100, secured in the circuit court of Lawrence county by defendant in error. The policies were each for an indemnity of $2,550 for total and permanent blindness in either eye, resulting from accidental means.
The evidence of defendant in error on the trial showed that on December 11, 1918, he stepped on a loose board, which tipped up and struck him on the left side of the jaw, and that about two weeks thereafter he found that he had lost the sight in his right eye, and his evidence tended to establish that a cataract had developed in that eye and that it was traumatic in character. The defense of plaintiff in error on the trial of the cause was upon two principal grounds: First, that the cataract was not traumatic, but was an ordinary senile cataract due to the age of defendant in error and was in no wise related to the accident; and, second, that while the accident happened on the 11th of December, 1918, suit was not brought until the 30th of September, 1921. To the latter of these defenses defendant in error replied that the limitation period named in the original policy on which suit was brought was six months, but that such limitation had been waived by plaintiff in error by its treatment of the controversy after the lapse of the limitation period named in the contract. Plaintiff in error in its plea of the statute of limitations averred that the limitation period set out in the contract has been amended by the so-called standard provisions statute, governing the issuance and conditions of all insurance policies of this character, which went into effect on January 1, 1916 (Cahill's Stat. 1925, c. 73, §§ 469, 475), and which fixed the period of limitation at two years after the date on which proof of injury was due under the terms of the policy. Defendant in error replied that the policy in this case, having been issued previous to the enactment of the standard provisions statute, was not subject thereto.
The policy provided by its terms that it expired in twelve months from the date of issue. It also provided that it might be renewed, subject to the same conditions, by payment of the same premium, and that the company might cancel the same by giving written notice of such cancellation. The policy, after providing that suit thereon must be brought within six months from the date of filing proof of injury, reads:
‘Should any limitation set forth in this paragraph be prohibited by the statutes of the state in which this policy is issued, the said limitation shall be considered to be amended to agree with the minimum period of limitation by said statutes.’
Plaintiff in error contends that the policy, when renewed each year, was a new policy, and that the standard provisions statute applied to the first renewal after January 1, 1916, and to all succeeding renewals, and that the contract was thereby amended so as to make the period of limitation two years, and that since suit was not started until September 30, 1921, the limitation provisions of the statute applied and defendant in error is not entitled to recover.
[1] As to the first defense, the jury found that the blindness was due to the accident. This finding has been sustained by the Appellate Court. It was a controverted question of fact, and is therefore not open for consideration here.
[2][3] Regarding the defense of limitation, the argument of defendant in error, as we understand it is that the six months' limitation fixed by the contract applies, and the standard provisions statute, fixing the limitation period at two years, does mot apply, and that since plaintiff in error, during and after the six months' period of limitation in the contract, negotiated with defendant in error for a settlementof the claim, it waived the right to insist on the limitation provisions. Plaintiff in error, on the other hand, argues that the standard provisions statute does apply, and that all communication between the parties pertaining to the claim ceased nearly nine months before the statute of limitations had run, and that the evidence pertaining to the communications establishes, as a matter of law, that there was no waiver of the right of the insurance company to insist upon the limitations statute as a defense.
Whether the so-called standard provisions statute applies to a term policy issued before the act went into effect and renewed thereafter has not been previously considered by this court. Section 9 of the act provides that a policy issued in volation of the act shall be valid but shall be construed as provided in the act, and any provisions in the policy in conflict with the act shall be governed by the provisions of the act. Whether the two-year limitation is to be read into the renewals of the policy in the instant case after the 1st of January, 1916, depends, in part, upon when the policy sued upon was in fact issued. If the policy sued upon was issued in 1910, the standard provisions statute cannot be held to apply, for the language of the amendment provision of the policy cannot be construed to refer to a statute that may be enacted in the future and the Legislature has no power to change or vary the terms of a contract of this character. If, on the other hand, the policy expired at the end of each twelve months and was renewed by payment of the premium, then the policy was issued as of the date of the renewals, and the standard provisions statute, making the period of limitation in which action is to be brought two years instead of six months, as provided in the policy, does apply.
This court held in Palmer v. Bull Dog Auto Ins. Ass'n, 294 Ill. 287, 128 N. E. 499, that a renewal of a policy is, in effect, a new contract of assurance, being, unless otherwise expressed, on the same terms and conditions as were contained in the original policy. To the same effect is Hartford Fire Ins. Co. v. Walsh, 54 Ill. 164, 5 Am. Rep. 115.
In Hoyt v. Massachusetts Bonding Ins. Co., 80 N. H. 27, 113 A. 219, an accident policy had been issued in 1908. Its period of coverage was one year but was renewable from term to term. It provided six months' limitation for all suits or actions. In 1913 the Legislature of the state of New Hampshire enacted a law (Laws 1913, c. 226) identical with the standard provisions statute of this state. At that time the policy involved in that case was in effect, and was renewed from time to time thereafter until March 3, 1916, when an action accrued. The question arose whether the limitation provisions of the contract or of the statute controlled, and the court held that upon renewal of the policy after the standard provisions statute went into effect the provisions of that statute must be read into the policy as renewed, and that the period of limitation was two years and not six months.
[4] The policy in the Hoyt Case was similar to the one here, in that it contained a provision to the effect that it might be renewed subject to the same conditions and payment of the premium, and a provision providing for amendment of the contract by a statute similar to the statute in this case. It was in that case pointed out that the effect of such provisions...
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