Provident Fund Society v. Howell

110 Ala. 508

Opinion

HEAD, J.

One error in the present record is fatal to any recovery by the plaintiff, and we will not notice the other assignments. The case is an action by the appel-lee on a policy of accident insurance. The injury received by the plaintiff resulted in the loss of an arm. By the terms of the policy, to entitle the plaintiff to receive the stipulated indemnity, he was required, within four months from the date of the injury, to furnish to the society affirmative proofs of the injury and duration of the disability, and that same resulted proxunately from bodily injury covered by the contract; aud it is expressly stipulated that no legal proceedings for a recovery under the policy shall be brought within three months after the receipt of such proofs, at the office of the society, nor at all unless begun within six months from the date when the society shall have received such proof. It is a conceded fact that the only proof of the injury was received by the. society on the 15th day of September, 1892, after the injury on August 5, 1892, and that the suit was begun on April 17th, 1898 — over seven months after the receipt of the proof. The city court, construing this provision, held that the period of limitation began to run three months after the receipt by the company of the proofs of injury, during which time it was provided no suit should be brought. In this, in our opinion, the court was in error.—Schroeder v. Keystone Ins. Co. 2 Phila. 286; King v. Watertown Ins. Co. 47 Hun. 1; Traverler’s Ins. Co. v. California Ins. Co. 1 N. D. 151; Bradley v. Phoenix Ins. Co., 28 Mo. App. 7; Johnson v. Humboldt Ins. Co., 91 Ill. 92, 33 Amer. Rep. 47; Fullam v. N. Y. Ins. Co., 7 Gray 61, 66 Amer. Dec. 462; Thompson v. Phoenix Ins. Co., 25 Fed. Rep. 296; Virginia Ins. Co. v. Wells, 83 Va. 736; Tasker v. Kenton Ins. Co., 58 N. H. 469; Glass v. Walker, 66 Mo. 32; Raymond v. Fish, 51 Conn. 80, 50 Amer. Rep. 3; Cooper v. Benefit Asso., 28 Amer. St. Rep. 583; note Chambers v. Atlas Ins. Co., 50 Amer. Rep. 1, and cases cited in note; Hart v. Citizens Ins. Co., 86 Wis. 77, 39 Amer. St. Rep. 877. There are many cases to the contrary, but we do not approve them.

The stipulation is too j>lain for construction. In express and unambiguous words it provides that no suit shall be brought after six months from the date the proofs are received. This is a valid stipulation and effect must be given to it. See 11 Amer. &Eng. Encyc. of Law, p. 349, and many cases there-collected. There being no controversy as to these facts, it is evident the plaintiff can, in no event, recover. Wherefore the judgment of the city court must be reversed, and a judgment here rendered in favor of the defendant.

Reversed and rendered.