Johnson v. the Humboldt Ins. Co..

• Citation: 33 Am.Rep. 47,1878 WL 10236,91 Ill. 92
• Parties: WILLIAM S. JOHNSON et al.v.THE HUMBOLDT INSURANCE COMPANY.
• Decision Date: 30 September 1878
• Court: Supreme Court of Illinois

91 Ill. 92

1878 WL 10236 (Ill.)

33 Am.Rep. 47

WILLIAM S. JOHNSON et al.

v.THE HUMBOLDT INSURANCE COMPANY.

Supreme Court of Illinois.

September Term, 1878.

APPEAL from the Appellate Court of the First District; the Hon. THEODORE D. MURPHY, presiding Justice, and the Hon. GEO. W. PLEASANTS and Hon. J M. BAILEY, Justices.

Mr. M. W. ROBINSON, for the appellants.

Mr. THOMAS C. WHITESIDE, and Mr. FRANK J. SMITH, for the appellee.

Mr. JUSTICE WALKER delivered the opinion of the Court:

This was an action on a policy of insurance, brought by appellants against appellee. To the declaration appellee filed a plea of limitations, that the suit was not brought within twelve months from the time the loss occurred, according to the terms and conditions of the policy. To this plea appellants filed a demurrer, which was sustained by the Superior Court, in which the suit was pending, and a judgment was rendered against appellee. An appeal was prosecuted to the Appellate Court of the First District, where the judgment was reversed, and plaintiffs in the Superior Court appeal, and ask a reversal.

It is stipulated that the policy contained this provision: “The amount of loss or damage to be estimated according to the actual cash value of the property at the time of the loss, and to be paid sixty days after due notice and proof of the same made by the assured, and received at this office, in accordance with the terms and conditions of this policy, unless the property be replaced, or the company have given notice of their intention to rebuild or repair the damaged premises.” That there was annexed to the policy this condition: “It is furthermore hereby expressly provided and mutually agreed, that no suit or action against this company, for the recovery of any claim by virtue of this policy, shall be sustainable in any court of law or chancery until after an award shall have been obtained fixing the amount of such claim, in the manner above provided, nor unless such suit or action shall be commenced within twelve months next after the loss shall occur; and should any suit or action be commenced against this company after the expiration of the aforesaid twelve months, the lapse of time shall be taken and deemed as conclusive evidence against the validity of the claim, any statute of limitation to the contrary notwithstanding.”

The fire producing the loss occurred on the 14th of July, 1874, and proofs of loss were furnished by appellants, to which no objections were made by the agents of appellee, at its office, on the 21st of July, 1874. This action was commenced on the 13th of September, 1875, on the policy, to recover for the damages sustained by the fire. The action was not brought within twelve months after the loss occurred, but within twelve months from the expiration of sixty days after the loss.

When the judgment of the Superior Court was reversed by the Appellate Court, counsel for plaintiffs in the Superior Court stipulated that they could not amend so as to obviate the effect of that decision, and that its decision was, in fact, final, and that court thereupon granted this appeal.

It is agreed that the only question presented by this record is, whether, under the above condition, the suit was brought in time. Appellants contend that the twelve months did not begin to run until the expiration of sixty days after the occurrence of the fire, whilst appellee contends that it began to run from the time of the fire. It all depends on the meaning of the language the parties have employed...