Miller v. State Insurance Company of Des Moines

• Decision Date: 03 March 1898
• Docket Number: 7907
• Citation: 74 N.W. 416,54 Neb. 121
• Parties: EUGENE MILLER v. STATE INSURANCE COMPANY OF DES MOINES
• Court: Nebraska Supreme Court

74 N.W. 416

54 Neb. 121

EUGENE MILLER v. STATE INSURANCE COMPANY OF DES MOINES

No. 7907

Supreme Court of Nebraska

March 3, 1898

ERROR from the district court of Sherman county. Tried below before HOLCOMB, J. Reversed.

REVERSED AND REMANDED WITH DIRECTIONS.

C. H E. Heath and Paul & Templin, for plaintiff in error.

Long & Mathew, contra:

A special limitation contained in a contract is valid and binding no matter what the general law of limitation may be. (Hudson v. Bishop, 35 F. 820; O'Laughlin v Union Central Life Ins. Co., 3 McCrary [U. S.] 543; Riddlesbarger v. Hartford Ins. Co., 7 Wall. [U. S.] 386; Davidson v. Phoenix Ins. Co., 4 Sawyer [U. S.] 594; Thompson v. Phoenix Ins. Co., 25 F. 296; Arthur v. Homestead Fire Ins. Co., 78 N.Y. 462; De Grove v. Metropolitan Ins. Co., 61 N.Y. 594; Wilkinson v. First Nat. Fire Ins. Co., 72 N.Y. 499; Allemania Ins. Co. v. Little, 20 Brad. [Ill.] 431; Phoenix Ins. Co. v. Lebcher, 20 Brad. [Ill.] 450; Humboldt Ins. Co. v. Johnson, 1 Brad. [Ill.] 309; Johnson v. Humboldt Ins. Co., 91 Ill. 92; Cornett v. Phoenix Ins. Co., 67 Ia. 388; Garretson v. Hawkeye Ins. Co., 65 Ia. 468; Edson v. Merchants Mutual Ins. Co., 35 La. Ann. 353; Blanks v. Hibernia Ins. Co., 36 La. Ann. 599; Farmers Mutual Fire Ins. Co. v. Barr, 94 Pa. St 345; Waynesboro Mutual Fire Ins. Co. v. Conover, 98 Pa. St. 384; Universal Mutual Fire Ins. Co. v. Weiss, 106 Pa. St. 20; Underwriters' Agency, v. Sutherlin, 55 Ga. 266; Tasker v. Kenton Ins. Co., 58 N.H. 469; Corn City Mutual Ins. Co. v. Schwan, 1 O. C. C. 192; Phoenix Ins. Co. v. Underwood, 12 Heisk. [Tenn.] 424; Higgins v. Windsor County Mutual Ins. Co., 54 Vt, 270.)

OPINION

RAGAN, C.

Eugene Miller files here a petition in error to review a judgment of the district court of Sherman county dismissing an action brought therein by him against the State Insurance Company of Des Moines, Iowa.

Miller's suit was upon an ordinary insurance policy issued by the defendant in error agreeing to indemnify him for any loss the insured property might sustain by reason of fire or lightning within a certain time. The policy provided that the insurance company should not be liable for any loss thereunder unless a suit for such loss was brought within six months of the date of the loss or damage, any statute of limitations to the contrary notwithstanding. Among other defenses to the action the insurance company interposed that Miller's suit was not brought within six months after the happening of the loss sued for. The case was tried to the court without a jury, and the court found specially as follows: "The court finds under the pleadings and the evidence, in favor of the plaintiff as to all issues raised by the pleadings, except as to the issue that the action was not brought within six months from the time the cause of action accrued, as provided in the policy, and upon that issue the court finds in favor of the defendant." Upon this finding the court dismissed Miller's action. The statutes of this state provide in what time all actions may be brought, and a contract which provides that no action shall be brought thereon, or for a breach thereof, unless within a time therein specified, which is different from the time which the statute fixes for bringing an action on such contract, or for a breach thereof, is against public policy, and will not be enforced by the courts of this state. (Barnes v. McMurtry, 29 Neb. 178, 45 N.W. 285.) In Eagle Ins. Co. v. Lafayette Ins. Co., 9 Ind. 443, such a clause was held to be absolutely void. Phoenix Ins. Co. v. Rad Bila Hora Lodge, 41 Neb. 21, 59 N.W. 752,...