Wilson v. Ætna Insurance

27 Vt. 99

• Court: Supreme Court of Vermont
• Decided: December 15, 1854
• Status: Published

Opinion

The opinion of the court was delivered by

Redfield, Ch. J.

No question seems to be made in the argument, that such contracts, in regard to the time within which the action shall be brought, are binding. Indeed, we do not well see how any could be made. It is clear that the parties might have agreed no action should be brought until after any given time, say one, five, or fifty years, and they would be bound by the limitation. And it is difficult to see how this differs in principle from such a limitation. It is but a limitation as tp the time within which an action may be brought, and whether you exclude the first year and include all time after, or include the first year and exclude all time after, it seems impossible to find any difference in the principle of the contract or its legal policy.

Contracts of assurance are construed with great strictness by courts, and justly so. It is well settled that the assured is bound to the strict truth of all representations, and the slightest breach of good faith or warranty in regard to the risk, avoids the policy. So, too, in case of loss, the assured cannot recover if. he fail strictly to comply with all the conditions of his policy in regard to the time and mode of reporting his loss, or in procuring certificates of its being in good faith, or even its amount, where such conditions are made explicit prerequisites to the right of recovery. We see no possible reason why this condition should not be equally binding.

And this stipulation is too explicit to allow of any escape from its import by construction. It is not that an action shall be commenced within twelve months ; but that no recovery shall be had unless such action is commenced within twelve months after the loss. Such action can only signify the action in which the recovery is sought. That must be this action, and all actions in which a recovery is claimed. And there is no provision for any exception on account of the failure of any of such actions. And without such provision in the contract, the court cannot import one without subjecting the contract to virtual disregard, at the mere will or caprice of the parties. No court of law could relieve the party from the performance of a condition of this nature, unless upon proof of the fraud of the other party. If the party could have any relief in such case, which is questionable, — too questionable to be hopeful, — it would not be here.

Statutes of limitation would be subject to no such exception, unless by the express terms of the statutes. That a party was driven to a nonsuit in his former suit, is no excuso for not bringing a suit before the cause of action is barred by statute, or by the terms of the contract, unless such an exception is contained in the act of limitation. And if not contained in such act or contract, no court has any authority to incorporate one. Crary v. Hartford Insurance Co., 1 Blatch. C. C. 280. Worsley v. Wood, 6 Term 710. 20 Vt. 222. The case in Blatchford is a decision of the circuit court in the district of Connecticut, upon a precisely similar provision in the policy of another Hartford insurance company, and Justice Nelson holds it a defence to the merits of the claim, and calls it a condition subsequent, in the contract, by which the right to indemnity for the loss is defeated. I should say it was a condition precedent to the right of recovery, which is the same thing in a different form of words.

Judgment affirmed.