Karnes v. American Fire Insurance Company of Philadelphia

• Decision Date: 07 June 1898
• Citation: 46 S.W. 166,144 Mo. 413
• Parties: Karnes, Appellant, v. American Fire Insurance Company of Philadelphia
• Court: Missouri Supreme Court

46 S.W. 166

144 Mo. 413

Karnes, Appellant, v. American Fire Insurance Company of Philadelphia

Supreme Court of Missouri

June 7, 1898

Transferred from St. Louis Court of Appeals.

Reversed and remanded.

W. W Fry and J. H. Cupp for appellant.

(1) In the State of Maine a like statute was attacked, but was held to be constitutional. Doblier v. Agl. Ins. Co., 67 Me. 180. This seems to be the only case passing on the question. (2) Respondent claims the statute violates the constitutional protection of one's property. In fact it is a wise provision protecting the policy holder in the right to recover his loss. It does not impair the obligation of the contract. This statute existed when this policy was issued and the statute became a part of the contract. When the policy was issued respondent subjected itself and its contract with plaintiff to this law governing it. Ellerbe v. U. M. B. Ass'n, 114 Mo. 501. (3) This is purely a remedial statute. It does not affect or interfere with any constitutional right or privilege. A party has no vested right in a remedy, and the legislature may pass laws creating, altering, modifying or even taking away remedies for the collection of debts. 6 Am. and Eng. Ency. of Law [2 Ed.], 957; Conkey v. Hart, 14 N.Y. 22. (4) A statute changing the time within which an action may be brought effects merely the remedy in which no one has a vested right. Bradley v. Norris, 63 Minn. 156; Wheeler v Jackson, 137 U.S. 255; Cooley's Const. Lim. 285-290. (5) Revised Statutes, section 6784, is a saving or protection statute. Under Revised Statutes, section 6775, plaintiff had five years within which to institute her action on the policy, and section 6784 stays the running of the statute of limitations, while a suit is pending and saves to the plaintiff the right to institute a new suit for the period of one year after nonsuit even though the five years have elapsed. If the five years have not elapsed such saving provision is not necessary as he already has said period of five years, but, if it has elapsed he is protected by this statute. Premo v. Lee, 56 Vt. 60; Coffin v. Cottle, 33 Mass. 385; Houts v. Shepard, 79 Mo. 145; Briant v. Fudge, 63 Mo. 491.

George Robertson for respondent.

(1) The plaintiff took her nonsuit on the sixth of February, 1890, and began this action upon the same cause of action on the twenty-eighth day of August, 1891, and under the terms of this statute is completely barred. This applies alike to voluntary or involuntary nonsuits. R. S. 1889, sec. 6784; State ex rel. v. O'Gorman, 75 Mo. 370; Childs v. Wallace, 83 Mo. 85; Chouteau v. Rowse, 90 Mo. 191; Davis v. Hall, 90 Mo. 659; Shaw v. Pershing, 57 Mo. 417; Glenn v. Liggett, 135 U.S. 533; Coffin v. Cottle, 16 Pick. 383. (2) In 1887 (acts of 1887, p. 99; R. S. 1889, sec. 2394) an act was passed that any contract hereafter made tending to limit the time in which any suit may be instituted shall be null and void. The contract upon which this action is founded has a clause limiting the time to one year from the date of the fire in which a suit may be brought. Our contention is, that this condition of the contract is valid and that the act of 1887 is unconstitutional. Glass v. Walker, 66 Mo. 32; 13 Am. and Eng. Ency. of Law, 690; 11 Ib., 349; 1 Cooley's Blackstone, star p. 139; Comm. v. Perry, 155 Mass. 117; Ritchie v. People, 155 Ill. 98; State v. Loomis, 115 Mo. 307; State v. Julow, 129 Mo. 163. (3) The act in question is violative of article II, section 4, Constitution of Missouri, Preamble Constitution of the United States, and fifth and fourteenth amendments to the Constitution of the United States. State v. Loomis, 115 Mo. 307; State v. Julow, 129 Mo. 337; Comm. v. Perry, 155 Mass. 117; People v. Gilson, 109 N.Y. 389; Ritchie v. People, 155 Ill. 98; In re Jacobs, 98 N.Y. 98; Leep v. Railroad, 58 Ark. 407; State v. Goodwill, 33 W.Va. 179.

OPINION

In Banc.

Williams J.

This is a suit upon a policy of insurance, issued April 18, 1888, on a stock of millinery goods belonging to plaintiff. The property was destroyed by fire on the twenty-seventh of November in said year and during the time covered by the policy. The present suit was begun April 28, 1891. The case was tried by the court without a jury, and, at the close of the testimony, a declaration of law was given that, under the pleadings and evidence, plaintiff could not recover. Judgment was accordingly rendered for defendant, and an appeal was taken to the St. Louis Court of Appeals. The case was transferred to this court on account of the constitutional question hereinafter mentioned.

Counsel have presented only two propositions of law for our consideration, and both relate to the time of bringing this action.

I. The present suit was commenced more than one year after the loss. The policy contains a clause stating that "no suit or action of any kind against this company for a recovery of a claim under this policy shall be sustainable in any court unless begun within one year from the date of the fire." The contract of insurance was made after the act of March 18, 1887 (now sec. 2394, 1 R. S. 1889), went into effect, and the provisions of which are as follows: " All parts of any contract or agreement hereafter made or entered into which either directly or indirectly limit or tend to limit the time in which any suit or action may instituted, shall be null and void." The statute, it will be observed, does not undertake to interfere with existing contracts, but declares null and void all future agreements contrary to its provisions.

Defendant assails the act as an unconstitutional attempt to take away the right of private contract, which, it is said, is guaranteed to the citizen. It is argued that "the right to acquire, possess and protect property includes the right to make reasonable contracts which shall be under the protection of the law." The State may nevertheless prohibit such contracts as contravene the policy of its laws, and the right exists to prevent the enforcement of agreements that are against the public policy of the State, or that will result in fraud, imposition or oppression. The Supreme Court of the United States said in Frisbie's case, 157 U.S. 160, " While it may be conceded that, generally speaking, among the inalienable rights of the citizen is that of the liberty of contract, yet such liberty is not absolute and universal. It is within the undoubted power of government to restrain some individuals from all contracts, as well as all individuals from some contracts."

It can not be claimed that parties have the right to make any and all contracts they deem proper. The State has made and may properly make many regulations that will restrict this right. For instance, we have usury laws and their validity is unquestioned. Parties are not permitted to insert certain conditions in insurance contracts which would be perfectly legitimate, but for statutory prohibition. Yet the courts sustain these provisions and declare ineffectual any attempt by contract to evade or nullify the statute. Equitable Society v. Clements, 140 U.S. 226, 35 L.Ed. 497, 11 S.Ct. 822; Havens v. Ins. Co., 123 Mo. 403, 27 S.W. 718; and see, also, Henry Co. v. Evans, 97 Mo. 47, 10 S.W. 868.

The legislature determined that a sound public policy demands that the courts of the State shall remain open to litigants as long as their claims are not barred by the statute of limitations, and hence passed this act. The statute proceeds upon the theory that rules limiting the time for bringing suits should be uniform and general, and should not be left to private contract. The policy of the State has been to except from the operation of the statute of limitations persons under certain disabilities and who are therefore entitled to special protection. Yet, when the time is fixed by agreement, the contract must control and the statutory exemptions, based upon wise reasons, are evaded. It has been held that the law permitting a plaintiff within a year after suffering a nonsuit, to bring another action has no application when a contract like the one under consideration has been substituted for the statutory limitation. A party, therefore, might bring his suit in good faith, having a just cause of action and, by some mischance without any fault of his, be forced to a nonsuit too late to bring a new suit within the time fixed...