Dolbier v. Agricultural Insurance

Barrows, J.

The first point upon which the defendants rely in support of their demurrer is, that the action cannot be maintained because not seasonably commenced according to the declaration *183 itself, which, shows that the loss occurred July 10, 1875, and sets out with much other superfluous matter the stipulation of the parties in the policy that no suit or action shall be sustainable in any court of law or equity unless commenced within twelve months next after the loss or damage shall occur. This action was not brought until August 25, 1876.

The stipulation referred to is not the only one which our legislature has found it necessary to exscind or nullify in order to make the contract of insurance what it purports to be. In the present case this is effectually (if not elegantly) done by E. S., c. 49, § 62, thus: “No conditions, restrictions or stipulations in its charter, by-laws or policies, shall deprive the courts of this state of jurisdiction of actions against such companies, nor limit the time of commencing them to a period less than two years from the time the cause of action occurs.”

With this law before us we cannot say that the stipulation in the policy limiting the time for the commencement of an action to twelve months after the occurrence of the loss is binding on the assured.

The cases cited in defense, where, in the absence of such a statutory inhibition as that above quoted, stipulations for a special limitation of suits have been held valid and binding between the parties, are inapplicable. The statute is just as effective against the validity of the stipulation as though its insertion in a policy of insurance was prohibited under a penalty. Nor can it properly be held that the plaintiff waived the benefit of the statute by reciting the stipulation in his declaration and omitting to refer to the statute which abrogates it. The prosecution of this suit is conclusive against any intention to waive his rights under the statute. His designio avail himself of such rights was demonstrated by the commencement of this suit more than twelve months after the occurrence of the loss, and would be no more distinctly apparent if he had left out the stipulation when he framed his declaration, or if when he inserted it he had followed it up with a formal averment that it was deprived of its force by the statute. • He is here asserting his legal right to maintain the action. The defendants cannot defeat it by the interposition of a stipulation which has no legal efficaey.

*184 • But there are more substantial defects in the declaration, which seems to have been hastily and carelessly drawn, and contains much surplusage,- while it omits some weightier matters which were necessary to show a good cause of action. By the terms of the policy the defendants undertook to pay within sixty days after the reception. of notice and proofs of loss.

Whether the time of payment has yet arrived, the declaration does not show. The pleader does not seem to have undertaken to aver notice according to the stipulations in the policy ; but makes an abortive attempt to allege notice and proof in accordance with the requirements of R. S., c. 49, § 20. It is too defectively done to answer the purpose. Apparently the pleader had not troubled himself to ascertain when or how the notice was given or what proofs were made. It is true that the notice called for by the policy is of the simplest kind, and further proofs are essential only when required; but- the plaintiff nowhere says he gave that notice.

It was necessary for him in order to show a just cause of action to allege either the notice and proofs stipulated for in the policy, or those which the statute peremptorily declares sufficient.

He has done neither, and must pay in costs the penalty of his remissness, although upon the more important question presented by the demurrer, and the only one to which the attention of the presiding judge was called at nisi prius, he was, as we have before seen, in the right. He may amend his defective declaration upon the statute terms. Exceptions sustained.

Appleton, C. J., Walton, Yirgin, Peters and Libbey, JJ., concurred.