Schlitz v. Lowell Mutual Fire Insurance Co.

• Decision Date: 10 January 1923
• Parties: HENRY SCHLITZ v. LOWELL MUTUAL FIRE INSURANCE COMPANY
• Court: Vermont Supreme Court

119 A. 516

96 Vt. 334

HENRY SCHLITZ v. LOWELL MUTUAL FIRE INSURANCE COMPANY

Supreme Court of Vermont

January 10, 1923

October Term, 1922.

ACTION OF CONTRACT on a fire insurance policy. Plea, the general issue. Trial by jury at the September Term, 1921, Windham County, Fish, J., presiding. The court directed a verdict for the defendant. The plaintiff excepted. The opinion states the case. Reversed pro forma that plaintiff may apply for leave to enter non-suit.

The judgment in this case is reversed pro forma that plaintiff may apply for leave to enter a non-suit, if so advised.

Barber Barber & Miller for the plaintiff.

Carney Blake & Simonds (Gardner, Mass) for the defendant.

Present WATSON, C. J., POWERS, TAYLOR, MILES, and SLACK, JJ.

OPINION

SLACK

This is an action on a fire insurance policy. The policy is dated September 16, 1919, and contains the following provision, "No suit or action on this policy for the recovery of any claim shall be sustainable in any court of law or equity unless all the requirements of this policy have been complied with, nor unless commenced within twelve months next after the fire." The fire which occasioned the loss for which this suit is brought occurred January 20, 1920. The writ is dated July 6, 1921. After the plaintiff put the policy in evidence, the defendant moved for a directed verdict on the ground that the suit was not commenced within the time fixed by the provision of the policy above quoted, the motion was granted and the plaintiff saved an exception.

The plaintiff claims that the limitation clause in the policy contravenes the provisions of G. L. 5622, and, therefore, is void. That statute, so far as material to the question involved, is as follows: "A policy of fire life or accident insurance issued or delivered in this State by an insurance company doing business herein shall not contain a condition or clause limiting the time of commencement of an action on such policy to a period less than twelve months from the occurrence of the loss, death or accident, * * * and any such condition or clause shall be null and void."

It is a well recognized rule that a condition in a policy of insurance providing that no recovery shall be had thereon unless suit is brought within a given time is valid unless the time prescribed can be said to be unreasonable, or the limitation is rendered inoperative by statute. Bates v. German Commercial Accident Co., 87 Vt. 128, 88 A. 532, Ann. Cas. 1916C, 447; Morrill v. New England Fire Ins. Co., 71 Vt. 281, 44 A. 358; Riddlesbarger v. Hartford Fire Ins. Co., 7 Wall. 386, 19 L.Ed. 257; Sullivan v. Prudential Ins. Co. of America, 172 N.Y. 482, 65 N.E. 268. See, also, cases collected in Rose's Notes on U.S. Reports, vol. 4, p. 998.

The rule is equally well settled, that such provisions are void when they conflict with statutory inhibitions. Galliher v. State Mutual Life Ins. Co., 150 Ala. 543, 43 So. 833, 124 Am. St. Rep. 83; Smith & Marsh v. Northern Neck Mut. Fire Ass'n, 112 Va. 192, 70 S.E. 482, 38 L.R.A. (N.S.) 1016; Mass. Benefit Life Assn. v. Hale, 96 Ga. 802, 23 S.E. 849; Insurance Co. of North America v. Brim, 111 Ind. 281, 12 N.E. 315; Vesey v. Commercial Union Assur. Co., 18 S.D. 632, 101 N.W. 1074; German Ins. Co. v. Luckett, 12 Tex. Civ. App. 139, 34 S.W. 173.

Whether the limitation clause before us conflicts with our statute depends, as the plaintiff says, upon the meaning of the word "within." While he argues with much plausibility that "within" twelve months is necessarily "less than" twelve months, we cannot adopt this view. This law was enacted to prohibit certain insurance companies doing business in this...