Paul v. Fidelity & Casualty Ins. Co. of New York
| Decision Date | 08 September 1904 |
| Parties | PAUL v. FIDELITY & CASUALTY INS. CO. OF NEW YORK. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Frank T. Benner, Sumner H. Foster, and Frank Paul, for plaintiff.
Geo. W Buck, for defendant.
This is an action of contract to recover the sum of $5,000 upon an accident policy issued by the defendant to one Charles F Paul, who died May 29, 1902, as the result of accidental injuries received a few days previously. The policy is payable to Carrie V. Paul, the plaintiff, and the action is brought by the receiver in her name for his benefit. The case comes here on a report by the presiding justice after a refusal to rule, as requested by the defendant, that there was no evidence of waiver on its part of the terms of the policy, and a finding and judgment in favor of the plaintiff. If he ruling was right, the judgment is to be affirmed; otherwise such judgment is to be entered as law and justice may require.
The policy provided, amongst other things, that proof of death should 'be furnished to the company within two months from the time of death,' and that The writ in this case is dated July 18, 1903. Due proof of the death of the insured was filed at the home office of the company in New York on July 7, 1902, and no question arises as to that. On the 26th day of June, 1902, Jennie I. Paul, the widow of the insured, filed a bill in equity in the superior court against the beneficiary named in the policy, the present plaintiff, alleging that the only interest which the beneficiary had in the policy was that of pledgee, and offering to pay what was due, and to redeem the policy, and praying for an injunction to restrain her from selling or assigning the policy and from instituting or prosecuting any suit against the company or receiving any money payable under the policy. An injunction was issued as prayed for on the next day, July 27th, and notice thereof sent to the defendant. On November 26, 1902, a final decree was entered in the equity suit in favor of the plaintiff in the suit, Jennie I. Paul. An appeal from this decree was taken on December 1, 1902, by the defendant, the present plaintiff, which was waived by agreement of the parties about a year afterwards, and a rescript was sent down from the full court ordering the decree to be affirmed. The proceedings in regard to the appeal do not seem to us to have any bearing on the questions now in issue. In April, 1903, on application of the widow, the plaintiff in the equity court, receivers were appointed in that suit to receive the money due on the policy. For some reason, which does not appear, they were not authorized to sue and collect what was due, but only to receive what was due. Subsequently, also on application of the plaintiff in that suit, full authority in the premises was granted to the receiver, and on July 18, 1903, as already stated, this action was brought by him in the name of the beneficiary for his benefit. The defense is that the action was not brought within the time limited in the policy. And it is clear that it was not. But the plaintiff contends that the injunction operated to excuse her from the effect of the limitation contained in the policy, and, if it did not, that the conduct of the defendant has been such as to warrant a finding that it has waived the provision, or is estopped to set it up. We do not think that either contention is well taken. Though this action is brought by the receiver in the name of the beneficiary, it is, in effect, prosecuted for the benefit of the widow. But it is manifest that neither she nor the receiver can stand in any better position than the party to whom by its terms the policy is made payable except that possibly a waiver to the widow might enure to the benefit of the plaintiff. Jennings v. Met. Life Ins. Co., 148 Mass. 61, 66, 18 N.E. 601. It is well settled that the limitation named in the policy is a good one, and is binding on the insured. Lewis v. Metropolitan Life Ins. Co., 180 Mass. 317, 62 N.E. 369. The plaintiff does not, indeed, contend that it is not. As a general rule, when the period of limitation prescribed by statute has begun to run, it will continue to run unless the case is brought within one or more of the exceptions provided by the statute. We do not see why the same rule should not apply to limitations by contract. Wilson v. AEtna Ins. Co. of N. Y., 27 Vt. 99. In some states the time during which an injunction is in force restraining the bringing of an action is excepted by statute from the time limited for the commencement of the action. Wood on Limitation of Actions (1st Ed.) § 243. There is no such statute in this state. Whether, if there were, it would apply to limitations by contract, might admit of question. Riddlesbarger v. Hartford Ins. Co., 7 Wall. 386, 391, 19 L.Ed. 257; Wilkinson v. First Nat. Fire Ins. Co., 72 N.Y. 499, 28 Am. Rep. 166; Hamilton v. Royal Ins. Co., 156 N.Y. 327, 50 N.E. 863, 42 L. R. A. 485; Brown v. Roger Williams Ins. Co., 7 R. I. 301. It is not necessary, however, to consider that question now, since neither the policy nor, as already observed, the statutes of this commonwealth, contain any exception or provision in regard to the effect of an injunction. If there is no exception in the policy providing for such a case, and no provision in the statute, it is difficult to understand how an injunction issued after the time limited in the policy had begun to run can operate to prevent the limitation from taking effect; and it was so held in regard to a similar stipulation in a policy of insurance in Wilkinson v. First Nat. Fire Ins. Co., supra. The plaintiff contends that what is said in that case in regard to the effect of an injunction upon the limitation named in the policy is other, and that it has been modified, if not overruled, by the later decision in Hamilton v. Royal Ins. Co., supra. But all that that case decided was that a statutory provision in regard to the commencement of actions operated to save an action begun in accordance with it from the effect of a limitation created by...
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