Glass v. Walker

• Decision Date: 31 October 1877
• Citation: 66 Mo. 32
• Parties: GLASS v. WALKER, Assignee of the State Insurance Company, Plaintiff in Error.
• Court: Missouri Supreme Court

66 Mo. 32

GLASS

v.WALKER, Assignee of the State Insurance Company, Plaintiff in Error.

Supreme Court of Missouri.

October Term, 1877.

Error to Probate and Common Pleas Court of Newton County HON. P. H. EDWARDS, Judge.

P. T. Simmons for plaintiff in error.

Suit was not commenced within twelve months next after the loss occurred, as required by the policy and the charter, Sess. acts. 1872, p. 238 § 13; Wag. Stat., Vol. 2 § 1, p. 1006; Keim v. Home Mut. Fire and Marine Ins. Co., 42 Mo. 38; Angell on Fire and Life Ins., par. 14.

C. W. Thrasher, for defendant in error.

If the limitation of twelve months for bringing suit contained in the charter of the company, would, under any circumstances, have any effect, it was waived by the action of the company in the case, and the assured was remitted to his rights under the general law of limitation. Monk's Vansantvoord's Pl., (3rd ed.,) 677; Nute v. Hamilton Ins. Co., 6 Gray 174, 179; Amesbury v. Bowditch Mut. Fire Ins. Co., 6 Gray 596; Hall v. Peoples Mut. Fire Ins. Co., 6 Gray 185, 192. In this case the company made no determination regarding the loss.

NORTON, J.

This suit was instituted in the probate and common pleas court of Newton county, for the recovery of the value of a stock of drugs and medicines, which had been insured by the defendant, and which had been destroyed by fire. The petition is in the usual form, and alleges the total destruction by fire of the property insured, and asks judgment for $1,500--the full amount insured by the policy.

The answer of defendant admits the contract of insurance; alleges misrepresentation in reference to the value of the goods in plaintiff's application for a policy; that plaintiff willfully procured the burning of the insured property; that the probate and common pleas court of Newton county had no jurisdiction of the cause; and that the suit, not having been brought within twelve months after the loss occurred, was not, under the contract of insurance, maintainable. The answer denies the total destruction of the property, and also denies that plaintiff performed the conditions contained in the policy of insurance. The replication of plaintiff puts in issue, the new matter set up in the answer. Upon a trial the plaintiff recovered judgment from which defendant, after his motions for new trial and arrest of judgment were overruled, has appealed to this court.

It was shown by the evidence that the defendant, on the 3rd day of July, 1872, issued its policy of insurance to plaintiff against loss by fire, to the amount of $1,500 on a stock of drugs and medicines, in Granby City, Newton county, for the term of one year, for which plaintiff paid defendant a premium of $37.50. Among other conditions, said policy contained the following: “In case of loss, the assured shall forthwith give notice to the secretary of the company, and within thirty days after such loss, deliver, at the office of the company in Hannibal, in person, by agent, mail or express, a particular account of said loss, signed and sworn to by him, naming each article, and the cash value thereof, &c. and shall also produce a certificate, under the hand and seal of a magistrate, notary public, or clerk of a court of record, nearest to the place of the fire, stating that he has examined into the circumstances of the loss; knows the character of the assured, and believes that the assured has, without fraud, sustained a certain amount of loss. It further provides that the assured shall, if required, submit to an examination, under oath, by any officer of the company or any person appointed by it; and that no suit or action for the recovery of any claim by virtue of this policy shall be sustained in any court of law or chancery, unless it shall be brought within twelve months next after the loss shall occur; and should any suit be commenced after the expiration of twelve months, the lapse of time shall be taken and deemed as conclusive evidence against the validity of the claim, any statute to the contrary notwithstanding.” It is also stipulated that “this policy is made and accepted upon the above express conditions, and the charter and by-laws of this company, are to be resorted to and used to explain the rights and obligations of the parties hereto, in all cases not herein otherwise specially provided for.”

The evidence showed that nearly all the property insured was consumed by fire on the 14th day of November, 1872; that immediately after the loss the insured sent a dispatch to the secretary of defendant, which was received, and the next day after the loss informed the company by letter thereof; that soon thereafter, the defendant sent to Granby City, L. Coons, as an agent, to adjust the loss; that said agent made up the statements and papers to be signed by plaintiff, and examined the plaintiff, under oath, fully as to the facts and circumstances of the loss, reducing the same to writing, which was sworn to and subscribed by plaintiff; that Coons informed the insured that if anything more was required of him he would notify him thereof; that afterward, one Judson, the local agent of the company, gave plaintiff notice to furnish him copies of invoices which had been burned, which was done as far as was practicable; that the petition was filed on...