Fid. & Cas. Co. of New York v. Jasper Furniture Co.

• Decision Date: 11 October 1917
• Docket Number: No. 23271.,23271.
• Citation: 186 Ind. 566,117 N.E. 258
• Court: Indiana Supreme Court
• Parties: FIDELITY & CASUALTY CO. OF NEW YORK v. JASPER FURNITURE CO.

186 Ind. 566

117 N.E. 258

FIDELITY & CASUALTY CO. OF NEW YORK

v.JASPER FURNITURE CO.

No. 23271.

Supreme Court of Indiana.

Oct. 11, 1917.

Appeal from Circuit Court, Pike County; John L. Bretz, Judge.

Action by the Fidelity & Casualty Company of New York against the Jasper Furniture Company. Judgment for defendant, and plaintiff appeals. Transferred from Appellate Court under section 1405, Burns' Ann. St. 1914. Affirmed.

Albert N. Funkhouser, Arthur F. Funkhouser, and Robert D. Markel, all of Evansville, for appellant. R. M. Milburn, of Indianapolis, and Bomar Traylor, of Jasper, for appellee.

SPENCER, J.

Under a policy contract dated March 2, 1903, appellant insured appellee for a period of 12 months from that date against loss from common-law or statutory liability for damages on account of bodily injuries, fatal or nonfatal, accidentally suffered within the period of the policy by any employé or employés of appellee during the course of his or their employment. As compensation for that insurance appellee paid to appellant a premium in the sum of $134, which premium was, under the terms of the contract, based on the amount of compensation to employés which, it was estimated, would be expended by appellee during the period of the policy. It was further stipulated that if the compensation actually paid in that period should prove to be greater than the amount of the original estimate, appellee should pay the additional premium thus earned. The present action was instituted on May 18, 1914, to recover an additional premium alleged to be due under this provision of the contract. In its answer to the complaint, appellee relies chiefly on the ten-year statute of limitations (section 295, cl. 5, Burns 1914), and we are required first to determine the applicability of that statute.

In this connection it is to be borne in mind that a failure to discover a cause of action does not, like its concealment, operate to suspend the statute of limitation. Jackson v. Jackson, 149 Ind. 238, 242, 47 N. E. 963;Ware v. State ex rel., 74 Ind. 181, 196.

A cause of action accrues, so that limitations begin to run, at the moment its owner has a legal right to sue on it, except where extrinsic facts, postponing the operation of the statute, are interposed. Farneman v. Farneman, 46 Ind. App. 453, 457, 90 N. E. 775, 91 N. E. 968; 25 Cyc. 1065, and authorities cited.

As the claim sued on in this action is for money alleged to be due under a written contract, no demand for payment was necessary in order to fix the liability of appellee, but the additional premium, if any was owing, was legally due when the term of the policy expired on March 2, 1904. This action must then have been commenced within 10 years from that date, unless other facts exist which were sufficient to postpone the operation of the statute.

Appellant makes no charge that appelle...