Owen v. Howard Ins. Co.
| Decision Date | 04 December 1888 |
| Citation | 10 S.W. 119,87 Ky. 571 |
| Parties | OWEN v. HOWARD INS. CO. |
| Court | Kentucky Court of Appeals |
Appeal from court of common pleas, Jefferson county; HENRY STITES Judge.
Action by Joseph V. Owen against the Howard Insurance Company on an insurance policy. The contract was made in Henderson county in which plaintiff resided, and the property was located. At the time of bringing suit defendant had no agent in that county, but had a local agent in Jefferson county. Defendant appeared specially and demurred to the jurisdiction of the Jefferson court of common pleas, because Jefferson county was not the county "in which its principal office or place of business was situated," nor the "county in which the transaction" took place; its principal office being in New York. The demurrer was overruled. Sections 71 and 72 of the Code are:
Bullitt & Shield and Turner & Cunningham, for appellant.
A. E Willson and Baker, Smith & Baker, for appellee.
The tenth clause of the policy which the appellant claims was issued to him by the appellee provides: "This company hereby limits its liability under this policy, and it is hereby expressly provided 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 an appraisal shall have been obtained, fixing the amount of such claim above provided, nor unless such suit or action shall be commenced within twelve months next after the fire shall have occurred; 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 any such claim, any statute of limitations to the contrary notwithstanding." On the 16th day of March, 1885, the appellant instituted this action in the Jefferson court of common pleas, for the purpose of recovering the amount for which the appellee, as alleged, insured his store-house situated in Corydon, Henderson county, Ky. which store-house it is alleged was destroyed by fire on the 16th of March, 1884. The appellee, as one ground of defense, relied upon the contract limitation, above set forth, of one year, as a bar to the appellant's right to maintain his action. The appellant demurred to this defense upon the ground, among others, that the last day of the year in which he was allowed to bring his suit was Sunday, which was not a secular day; and as he was allowed by the terms of the contract a whole year from the destruction of the store-house by fire in which to bring his suit, and as the last day of the year was Sunday, and as it was unlawful to bring his suit on that day, he was entitled to bring it on the day following, Monday. The demurrer was overruled, and, the appellant declining to reply, the allegations of this paragraph were taken as true, and the action was dismissed.
If the ground of demurrer above mentioned was well taken, it is needless to notice other grounds urged for sustaining the demurrer. That ground we will proceed to investigate. It is to be kept in mind that the limitation of one year, relied on by the appellee, was the result of contract, and must be fairly and equitably construed in order to effectuate the intention of the parties to it. It is clear, therefore, that it was the intention that the appellant should have 365 days--one year--in which to bring his suit, and that Sundays should be counted to make up said number of days; but that the appellant should have at least 365 days in which to make his proofs of loss, etc., and to bring his action for the recovery of the...
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