Law v. New England Mutual Accident Ass'n ( 1892 )

Durand, J.

This suit is brought upon a certificate of insurance issued by tbe defendant company to tbe plaintiff, by tbe terms of wbicb it agreed to pay him certain, specified sums of money.in case be suffered personal bodily-injuries of a certain character, mentioned in tbe certificate,, at any time during its life.

During tbe life of tbe certificate or policy, and on April 9, 1890, tbe plaintiff was injured to an extent wbicb partially prevented him from practicing bis profession as-a physician for a period of about four weeks. Tbe plaintiff notified tbe defendant of tbe accident, wbicb made am examination into the facts, and a correspondence was had between the parties rn relation to the subject-matter, extending until November 4, 1890, at which time the defendant, through its agent, practically declined to pay, and informed the plaintiff that “perhaps it would be better to let the courts decide this matter.” On December 18, 1890, plaintiff began a suit in justice’s court to recover upon the certificate against the defendant, which is a foreign corporation; and on January 12, 1891, the suit was quashed, on the ground that a justice’s court summons could not. be lawfully served upon a foreign corporation. Nothing further was done by the plaintiff in reference to the enforcement of his claim until June 15, 1891, when this suit was begun.

The certificate contained a clause as follows:

“ And no suit or proceeding at law or in equity shall be brought, or arbitration required, to recover any sum, unless the same is commenced within one year from the-time of the alleged accidental injury.”

Upon the trial the circuit judge directed a verdict for the defendant on the ground that the action was not begun within a year after the accident occurred, as required by the policy. The plaintiff claims this is error.

We do not agree with this contention. As early as November 4, 1890, the plaintiff was fully advised that the defendant would not pay the claim, and all attempts looking towards an arbitration or settlement of it ceased. This left the plaintiff upwards of five months within which to have brought his suit and been strictly within this provision of the policy. This he did not do, but waited for upwards of two months after the time within which the suit should have been brought had expired before bringing it. The defendant had not misled him, or done anything which can be construed into a waiver of the substantial right expressed in the policy, and which required the suit to be brought within a year after the alleged accidental injury. Under these circumstances, we think that the suit ■ should have been brought within the year specified, and that, not having done so, the plaintiff lost his right to ,sue, under the principle recognized in the following cases: McIntyre v. Insurance Co., 52 Mich. 189; Voorheis v. Society, 91 Id. 469; Gould v. Insurance Co., 90 Id. 302; Steele v. Insurance Co., 93 Id. 81.

As this disposes of the case, nothing else will be considered.

The judgment is affirmed, with costs.

The other Justices concurred-.