Illinois Live Stock Insurance v. Baker , 1892 Ill. App. LEXIS 150 ( 1893 )

Opinion oe the Ooubt,

Wall, J.

This was assumpsit upon an insurance policy issued by the company upon a horse, belonging to the plaintiff.

The policy contained a limitation clause of six months, and the declaration averred that the company waived this clause by requesting the plaintiff not to sue.

In the first count the request was alleged to have been made after the six months had expired; in the second count it was alleged to have been made within that time. The defendant pleaded non-assumpsit, and several special pleas. The first special' plea set up as a defense that the suit was' not brought within six months, and the action of the court in sustaining a demurrer to that plea is assigned as error.

The declaration sought to avoid the bar of the limitation clause by averments showing a waiver, and it is conceded in the argument that if these averments are sufficient, the special plea amounted only to the general issue, and ivas unnecessary. Hence, there was no error prejudicial to the defendant in sustaining a demurrer to the plea.

In P. M. & F. Ins. Co. v. Whitehill, 25 Ill. 466, it is said that if an insurance company, “ by fraud, or by holding out reasonable hopes of an adjustment, deter a party assured, being under such a condition to sue, from commencing his suit, he honestly confiding in the pretenses and promises of the assurer, the condition .would be no bar, but in such case there should be proper averments in the declaration of the facts.” s

In Andes Ins. Co. v. Fish, 71 Ill. 620, the court adhere to the position that the limitation may be waived by such acts of the insurance company, but say it is not indispensable that the declaration should aver the facts; that the same rule of pleadings should be allowed in respect to this as to other limitations of actions, and that the limitation should, if insisted upon, be set up by plea, when the plaintiff may reply the facts relied upon, as excusing what would otherwise have been laches in bringing the suit.

It is, therefore, not necessary for the plaintiff to insert averments in his declaration to avoid the bar, but he may do so if he chooses, and in such case the general issue will put him upon proof of the waiver. The special plea was wholly unnecessary in this case. All the facts relied upon by the plaintiff in excuse of the delay were necessarily provable in order to make out the case alleged.

We think he clearly proved the waiver as alleged in the second count. All the promises and hopes held out by.the company were within the six months and there is no doubt that plaintiff was thereby delayed from suing. It is urged that before the six months expired, he was informed by the president of the company that he could not make anything if he did sue, because the company was insolvent, and that if he had a reasonable time then left within which to sue, he should have done so. In other words, that the waiver may be revoked and the limitation revived. We are inclined to agree with the Circuit Court on this point, and to hold that if there was once a waiver, it could not be recalled or revoked. If any substantial part of the time provided by the limitation is lost by reason of the waiver, the limitation is wholly gone. It can not be revived, nor can the plaintiff be required to sue within any time short of the statutory limitations. It is probably true that the suggestion of insolvency was to prevent the bringing of the suit. From the beginning, the president of the company represented to the plaintiff that the company was not then able to pay, but probably would be after a while, and if plaintiff would wait, he should be paid; and plaintiff, relying on this, did wait until the company became solvent. It is objected that the court of its own motion held a proposition to the effect that the question of limitation was not in issue, there being no plea of the statute of limitation. We suppose the court intended thereby to say that only the question of waiver was. involved. Strictly speaking, the question of limitation was involved by the averments of the declaration.

Whatever may have been the view of the court as to this merely technical matter, we are of opinion the merits of the case were with the plaintiff, so clearly that the judgment ought not to be disturbed. Affirmed.