Sun Mutual Ins. v. Levy , 3 Willson 507 ( 1888 )

Opinion by

Willson, J.

§ 128. Limitation not interrupted by suit, ivhen; case stated. Appellee sued appellant upon a policy of insurance and recovered judgment. The policy of insurance contained a stipulation that suit should not be brought thereon after the lapse of twelve months from the proof of loss. The original petition was filed within twelve months after the proof of loss, but said original petition misdescribed the premises insured, and because of this defect appellee, on the trial, not being able to introduce his evidence, took a nonsuit. He moved to set aside the nonsuit, which motion was granted, and he then filed an amended petition, correcting the mistake in his original petition. Appellant interposed the plea that the cause of action as set up in said amended petition was barred by said limitation stipulation in the policy, which plea was overruled. Held, that the cause of action was barred, more than twelve months having elapsed from the proof of loss to the time of the reinstatement of said cause and the filing of said amendment, although said nonsuit was set aside at the same term at which it was entered, and although said amendment was filed at the time said nonsuit was set aside. It is well settled that the institution and pendency of a suit, the prosecution of which is abandoned by the plaintiff, or in which he takes a nonsuit, does not, as a genei-al rule, interrupt the running of limitation. [1 App. C. C. § 806; Shields v. Boone, 22 Tex. 193; Hughes v. Lane, 25 Tex. 356; Angell on Lim. § 328; Wood on Lim. § 296.] It is well settled that the stipulation as to limitation in the policy is a valid one. [Ins. Co. v. Lacroix, 45 Tex. 159; Wood on Lim. pp. 80, 81, sec. 42.]

October 27, 1888.

Reversed and remanded.

Note.— Our supreme court lias recently held contrary to the above doctrine. Childs v. Shields, Sup. Ct., Galveston. Term, 1889.