Phoenix Insurance v. Smith

48 So. 1020, 95 Miss. 347

Opinion

Alexander,

* Special Judge,

delivered the opinion of the court.

Under sec. 587, Code 1906, which permits a defendant in a chancery suit “to make his answer a cross-bill” against the complainant or his codefendant, it is not required that the part of the pleading constituting the cross-bill be separate and distinct from the part constituting the answer, and a repetition of averments contained in the answer is not .necessary. The answer was evidently drafted without any thought at the time of making it a cross-bill, and/ if viewed as a cross-bill, is vague and inartificial, especially in its averments as to the amount of the loss; but it contains sufficient averments to make it good as against a demurrer.

The stipulation in the policy of insurance requiring suit to be brought within one year after the loss is for the benefit of the insurer. It rests solely on contract, and the insurance company may waive the provision or by its conduct estop itself to plead' the lapse of the period. It certainly needs no citation of authority to sustain a proposition so obvious as that an insurance company, which, after a loss, instead of awaiting an action on the policy or the expiration of the year, files a bill against the insured to'cancel the policy as having been fraudulently procured, or because of noncompliance with various provisions cannot, as against a cross-bill, although filed more than a year after the loss and seeking recovery'therefor, be permitted to avail of such stipulation. Although no injunction against bringing suit on the policy is issued, defendant is warranted in assuming that the insurance company, by impleading him in a court of competent jurisdiction in regard to the very matters necessarily involved in an action on the policy, has waived the benefits which, if it had stood solely on the defensive, might have accrued from' the limitation.

Affirmed and remanded, with leave to cross-complainant to amend, if so advised.

Affirmed.

Fletcher, J., having heen of counsel before his appointment to the bench, recused himself in this case and C. H. Alexander, Esq., a member of the supreme court bar, was appointed and presided in his place.