Fidelity & Cas. Co. of New York v. Love

• Citation: 111 F. 773
• Decision Date: 19 November 1901
• Docket Number: 1,019.
• Parties: FIDELITY & CASUALTY CO. OF NEW YORK v. LOVE.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

111 F. 773

FIDELITY & CASUALTY CO. OF NEW YORK v. LOVE.

No. 1,019.

United States Court of Appeals, Fifth Circuit.

November 19, 1901

Marcellus Green, and Garner Wynn Green, for plaintiff in error.

Dodd &amp Luckett, for defendant in error.

Before PARDEE, McCORMICK, and SHELBY, Circuit Judges.

SHELBY Circuit Judge.

This action was brought by Love, as administrator of D. B. Noah on an accident policy executed by the Fidelity & Casualty Company of New York, insuring D. B. Noah. Judgement was rendered against the company in the circuit court.

The first contention of the plaintiff in error is that the suit is barred by contractual limitation of six months. The policy provides that proof of death must be furnished the company 'within two months from the time of death,' that legal proceedings for recovery under the policy may not be brought 'till after three months from the date of filing proofs at the company's home office,' and that suit shall not 'be brought at all unless begun in six months from the time of death. ' Noah's death occurred December 1, 1899. Proof of the death was received by the company at its home office 'on or about January 8, 1900 ' The declaration was filed in court May 20, 1900, but no summons was issued on it till June 15, 1900. The contention is that the suit was not brought till the summons was issued and, more than six months having elapsed from the date of the death (December 1, 1899) and the date of the summons (June 15, 1900), the action was barred. The first answer made to this contention is that the six-months contractual limitation did not begin to run till the right of action accrued. The policy provides that suit may not be brought on it till after three months from the date of filing proofs at the company's home office. If the limitation did not begin to run till three months after the proofs were filed, the six months had not expired when the summons was issued, June 15, 1900. The view that the limitation does not begin to run in such cases till the right of action accrues is sustained by many adjudicated cases and text writers. 2 Bac. Ben. Soc.& Life Ins. §§ 446, 448, and cases there cited; 4 Joyce, Ins. § 3188, and cases there cited. The contrary view-- that the limitation begins to run from the date of the death-- is held by other courts. Griem v. Casualty Co., 99 Wis. 530, 75 N.W. 67; Chambers v. Insurance Co., 51 Conn. 17, 50 Am.Rep. 1; Johnson v. Insurance Co., 91 Ill. 92, 33 Am.Rep. 47. The question was referred to, but not decided, in Thompson v. Insurance Co., 136 U.S. 287, 298, 10 Sup.Ct. 1019, 34 L.Ed. 408. In Steel v. Same, 47 F. 863, it was held by the United States circuit court, district of Oregon, that the limitation began to run from the date of death; but this decision was overruled on error to the United States circuit court of appeals, Ninth circuit, by a divided court, the majority holding that the limitation did not begin to run till the right of action accrued. 2 C.C.A. 463, 51 F. 715. And this last decision, on certiorari to the supreme court, was affirmed, without an opinion, by a divided court. 154 U.S. 518, 14 Sup.Ct. 1153, 38 L.Ed. 1064. There is, however, another view of this question, that makes it unnecessary for us to decide between these conflicting authorities. The death occurred December 1, 1899. The declaration was filed May 29, 1900, 5 months and 28 days after the death. The following is the Mississippi statute in reference to the beginning of an action:

'Filing Declaration the Commencement of an Action. Except in cases in which it is otherwise provided, the manner of commencing an action in the circuit court shall be by filing in the office of the clerk of such court a declaration, on which a summons for the defendant shall be immediately issued, and an action shall, for all purposes, be considered to have been commenced and to be pending from the time of filing of the declaration, if a summons shall be issued thereon for the defendant, and if not executed, other like process in succession may be issued, in good faith, for the defendant.'

If there had been no delay in the issuance of the summons, the action was clearly to be considered as pending from the time of filing the declaration. John M. Fletcher was the agent of the defendant company, duly authorized to 'accept and acknowledge service of process. ' When the declaration was filed, Fletcher waived the issuance of summons by the following writing:

'I, John M. Fletcher, agent for the Fidelity & Casualty Co. of New York, in Attala Co., Miss., do hereby enter an appearance for said company to this suit, and hereby waive the issuance of service of summons, and hereby agree for said company to appear and plead to said action as fully and for all purposes as though it had been duly summoned to appear as the law directs in such cases.

'This May 29, 1900. . . . John M. Fletcher, Agent.

'Filed May 29, 1900. . . . J. H. Sullivant, Circuit Clerk,

'By M. A. Clark, D.C.'

If a summons had been issued May 29, 1900, it does not appear that it could have been served, except on...