Hart v. Citizens' Ins. Co. of Pittsburgh

• Decision Date: 26 September 1893
• Citation: 86 Wis. 77,56 N.W. 332
• Parties: HART v. CITIZENS' INS. CO. OF PITTSBURGH.
• Court: Wisconsin Supreme Court

86 Wis. 77

56 N.W. 332

HART

v.CITIZENS' INS. CO. OF PITTSBURGH.

Supreme Court of Wisconsin.

Sept. 26, 1893.

Appeal from circuit court, Douglas county; R. D. Marshall, Judge.

Action by John H. Hart against the Citizens' Insurance Company of Pittsburgh on a policy of fire insurance. From a judgment in defendant's favor, plaintiff appeals. Affirmed.Reed, Grace, Rock & Reed, for appellant.

J. B. Douglas, for respondent.

WINSLOW, J.

The action is upon a policy of insurance issued by defendant, November 11, 1890, upon plaintiff's dwelling house. There is no dispute as to the facts. The house was burned March 5, 1891. Proofs of loss were served May 1, 1891, being within the time required by the policy. The defendant refused payment May 9, 1891, and plaintiff commenced this action May 3, 1892, nearly 14 months after the fire. The policy contained provisions requiring immediate notice of loss, proofs within 60 days after the fire, examination of the assured under oath, if desired, and appraisal in case of disagreement as to amount of loss; also the following: “This company shall not be held to have waived any provision or condition of this policy or any forfeiture thereof by any requirement, act, or proceeding on its part relating to the appraisal or to any examination herein provided for; and the loss shall not become payable until sixty days after the notice, ascertainment, estimate, and satisfactory proof of the loss herein required have been received by this company, including an award by appraisers when appraisal has been required. No suit or action on this policy for the recovery of any claim shall be sustained in any court of law or equity until after full compliance by the insured with all the foregoing requirements, nor unless commenced within twelve months next after the fire.” It was held by the circuit court that the action was barred because not commenced within 12 months next after the date of the fire, and plaintiff appeals.

It is well settled that a clause in a contract limiting the time within which an action may be commenced thereon to a time shorter than that allowed by the statute of limitations is valid. The question here is whether the expression “twelve months after the fire” means what it says, or something else. It is to be noticed that the parties here have not used the expression “after the loss occurs.” Had this been the language used, it might reasonably be claimed, upon authority, that the “loss occurs,” not at the date of the fire, but when the loss is ascertained and established, and the right to bring an action exists. The decisions in favor of this doctrine are numerous. Steen v. Insurance Co., 89 N. Y. 315; Spare v. Insurance Co., 17 Fed. Rep. 568; Chandler v. Insurance Co., 21 Minn. 85;Ellis v. Insurance Co., 64 Iowa, 507, 20 N. W. Rep. 782;Miller v. Insurance Co., 70 Iowa, 704, 29 N. W. Rep. 411;Insurance Co. v. Fairbank, 32 Neb. 750, 49 N. W. Rep. 711;Barber v. Insurance Co., 16 W. Va. 658. There are, however, many decisions to the contrary: Chambers v. Insurance Co., 51 Conn. 17;Johnson v. Insurance Co., 91 Ill. 92;Fullam v. Insurance Co., 7 Gray, 61;Glass v. Walker, 66 Mo. 32;Bradley v. Insurance Co., 28 Mo. App. 7; Insurance Co. v. Wells, (Va.) 3 S. E. Rep. 349; Peoria Sugar Refining Co. v. Canada Ins. Co., 12 Ont. App. 418; Blair v. Insurance Co., 19 N. S. 372; Travelers' Ins. Co. v. California Ins. Co., (N. Dak.) 45 N. W. Rep. 703;Schroeder v. Insurance Co., 2 Phila. 286. Other cases, bearing more or less directly on the question, might be cited upon either side of the proposition. It seems apparent that it can hardly be said that the great weight of authority is on either side. It is a case where there are two directly opposing lines of authorities, both very respectable in numbers and weight. It was claimed by appellant that this court had substantially approved of the affirmative view of the proposition in Killips v. Insurance Co., 28 Wis. 472, and Black v. Insurance Co., 31 Wis. 74. Examination of these cases shows that this court expressly declined to pass upon this question. The principle laid down in them is simply that if the insurance company, by its acts, induces the insured to suspend his proceedings, and delay action on the policy, the time elapsing during such delay so caused should not be reckoned as a part of the time limited for the bringing of the action. It is an application of the familiar principle of estoppel. Doubtless the tendency of so many courts to construe the term “loss,” as meaning the time when liability was fixed, induced many insurance companies to substitute the word “fire,” as in the policy before us. It would seem as if the phrase “twelve months next after the fire” was susceptible of but one meaning; yet the courts have disagreed upon this question also. In the following cases it has been held that the word “fire” is to be construed as meaning, not the date of the fire, but the time when liability is fixed, and an action accrues to the insured: Friezen v. Insurance Co., 30 Fed. Rep. 352; Hong Sling v. Insurance Co., (Utah,) 30 Pac. Rep. 307;Case v. Insurance Co., (Cal.) 23 Pac. Rep. 534. On the other hand, the following cases hold that the limitation begins to run from the date of the fire: Steel v. Insurance Co., 47 Fed. Rep. 863; Meesman v....