Imagens das páginas
PDF
ePub

Messrs. L. J. Crawford and Hazelrigg,

Cincinnati, O., June 21, 1898. Chenault, & Hazelrigg for appellee. Newport National Bank,

Newport, Ky.

Gentlemen :O’Rear, J., delivered the opinion of the

I inclose you the note of Charles Spinks court:

for collection. This suit was upon a ten-year-term life

Note

$396 80 policy issued by appellant upon the life of

Interest

11 90 Charles Spinks for $10,000. The policy was issued February 1, 1894. The annual

$408 70 premium was $396.80. The policy contained

Yours respectfully, the following provisions:

E. W. Jewell, “All premiums or notes, or interest upon

General Agent. notes, given the company for premiums, shall be paid on or before the days upon

The bank, as agent of the insurance comwhich they become due," etc.

pany, presented the note to the insured and “Upon the violation of any of the forego- demanded payment. But it was not paid. ing conditions this policy shall be null and On July 7th following it was returned to apvoid, without action on the part of the com- pellant. On that day appellant wrote the pany, or notice to the insured or bene insured as follows: ficiary,” etc. “The contract of insurance between the

Cincinnati, O., July 7th, 1898. parties hereto is completely set forth in this Charles Spinks, Esq., policy and the application for the same, and

Newport, Ky. none of its terms can be modified, nor any Dear Sir: forfeiture under it waived, save by an agree The note given in payment of the annual ment in writing signed by the president, vice premium on your policy 114,386 was due president, or secretary of the company, and unpaid June 15th, and, according to the whose authority for this purpose shall not rules of the company, you must furnish us a be delegated.”

satisfactory certificate of good health before “No suit to recover under this policy shall settling this note. If you will kindly take be brought after one year from the death of the indorsed health certificate to the medical the insured.”

directors of the company, they will fill it The insured paid three of the annual pre- out and pass upon it. miums, and on December 15, 1897, executed

Yours respectfully, to appellant à six months' note for $396.80

E. W. Jewell, for annual premium due on that date. The

General Agent. note was not paid at maturity. On the day following the maturity of the note defend

It is claimed for appellant that it about ant's general agent at Cincinnati wrote the the same time forwarded to its local agent insured as follows:

at Newport, where insured lived, a formal notice canceling the policy for nonpayment

of premium; but there is no evidence that Cincinnati, O., June 16, 1898. it was ever received by the insured. OmitCharles Spinks, Esq.,

ting, therefore, the last-named act from the Newport, Ky.

proceedings, we have, so far as the insured Dear Sir:

was advised, that the insurance company Your note of $396.80 ($11.90 interest) on held his premium note, was endeavoring and policy 114,386 was due and unpaid on the intending to collect it in full, which repre15th day of June, 1898. Your immediate sented the premium on his policy to Decemattention to the above is of the utmost im- ber 15th following, and had taken no action portance to the validity of your policy in the looking to a cancelation of the policy. As event of sudden misfortune. Please call and

a matter of fact, it is testified that the comarrange to pay the same at once.

pany, immediately upon default, when the Yours respectfully,

note was due, marked the policy on its policy E. W. Jewell,

register “Canceled." The insured had been General Agent.

in the habit of executing notes to appellant for his premiums, and of paying them some

time after maturity. They were always reThe insured made no reply to this letter, ceived, so far as this record shows, without so far as the proof shows.

question. The insured, however, died on the On June 21st the general agent sent the 14th of September, 1898. This suit is by the note to a bank, with the following letter of beneficiary of the policy, a son of the inadvice:

sured.

It is the well-settled law of this state | limited to mere contracts of insurance, but that, if an insurer desires to avail itself must incontrovertibly be applicable to all of conditions in its policy to declare it for contracts; for, if it is a matter of agreement feited for the nonpayment of a premium alone between parties competent to contract, note, it must unequivocally elect to so treat the only inquiry that can ever be made is, it, and in fact then and thereafter so treat Have they agreed upon it? it. It will not be allowed, though, to claim Pleas of limitation were allowed long beboth that it is not bound on the policy, but fore there was any statute on the subject. that the insured is bound to pay the note. The courts applied them upon the theory of Its action must be consistent. While it may a fiction to the effect that after so long a retain the note, as evidence of its nonpay- lapse of time, during which the claimant ment, it must not retain it or treat it as an made no assertion of his rights in a personal evidence of that much indebtedness. More demand, a presumption was raised that the land v. Union Cent. L. Ins. Co. 104 Ky. 129, obligation had been paid or discharged, and, 46 S. W. 516; Union Cent. L. Ins. Co. v. in the case of real estate, that a conveyance Durall, 20 Ky. L. Rep. 441, 46 S. W. 518; had been executed but lost. The fiction was Johnson v. Southern Mut. L. Ins. Co. 79 Ky. justified in the reasoning of the courts by 406; Walls v. Home Ins. Co. 24 Ky. L. Rep. the evident justness of its effect; it being 1452, 71 S. W. 650. In the case at bar ap- argued that one who had so long neglected pellant not only retained the note after its his rights as to allow the other party to sufmaturity, but repeatedly endeavored to col fer by it, by the loss of evidence and the lect it in full thereafter. It thereby claimed like, ought not to be heard to disturb a conthat the insured owed to it $396.80 as an dition he had suffered to come about. But enforceable debt. .If he did, then appellant statutes of limitation have come to be enwas bound to him, as the consideration for acted everywhere. They are not mere rules it, upon the policy of insurance. Even of evidence, presumptions of the payment or though such provisions in policies of insur- extinguishment of the obligation sued upon, ance are automatic, they may be waived by but are statutes expressive of a public polithe parties, and this waiver may be in- cy, and are favorably regarded by the law. dicated by conduct, as well as by express They are not in operation or suspense at the language. The fact that the insured marked | mere will of the parties, but in spite of on its private books that the policy was can- them. While the statutes themselves make celed, did not cancel it, if thereafter it con- provision for their suspension, it is to be tinued to assert the note as an enforceable noted that in every instance it is allowed for obligation against the insured, thereby the purpose of continuing or prolonging a evincing to him that it was not canceled. pre-existing right to sue, and never to close Upon principle and authority we hold that the door against suits by any kind of waiver the evidence here shows a waiver by the in favor of an obligee. insurer of the condition of forfeiture in the Many statutory provisions are made for policy.

the protection of personal rights, which the The more important question is that of parties may avail themselves of or not, in special limitation of one year provided for their transactions, as they may please. But, by the policy. The suit was not brought where the statute is expressive of the public till more than one year after the death of policy, any contract made in contravention the insured. We are aware that this or a of it is ipso facto void. Parties will never similar provision is contained in nearly all be heard to say that they elect to waive the insurance policies, fire and life. We are public policy, and are willing to abide by further aware that the provision is upheld their own substituted policy. The public by many courts, including the United States policy, as the term indicates, is impersonal, Supreme Court (Riddlesbarger v. Hartford and essentially of universal and exclusive F. Ins. Co. 7 Wall, 386, 19 L. ed. 257), and application within the territory of the auis approved by text writers. This court has thority declaring it. There could be no pubalso, though with hesitation and misgiving, lic policy otherwise, and the whole people followed the other courts in approving it. would be powerless to enforce any wholeWe therefore have come to the reconsidera- some general rule of conduct in business tion of this question with a deep sense of transactions, where any number chose to its importance and difficulty, and of our ignore or violate it. Statutes of limitation duty in the premises. The legal question is, belong to this class. They pertain to the Can parties by contract substitute a period administration of justice by the courts of of limitation, binding upon the courts, for the state-a subject of paramount concern the statutes of limitation enacted by the to the whole public. That there may be a legislature? If they can, it must be upon period of repose against stale claims is prosome general principle, the breadth and far- vided, recognizing the old idea that, but for reaching effect of which cannot logically be the loss of evidence, death or removal of

manner

V.

witnesses, forgetfulness, and so on, an ap-, tempt an exact definition of the term “pubparent condition might have been explained lic policy.” Story says of it (Story, Contr. away. The statute means more than that $ 546): “It has never been defined by the no suit shall be maintained upon the class courts, but has been left loose and free of of claims treated of by it after the lapse of definition, in the same

as fraud. the time fixed by it. It means, also, that This rule may, however, be laid down, that, until that time has elapsed the courts are wherever any coniract conflicts with the open to hear the claim. The statutes are morals of the time, and contravenes any essubstituted in lieu of the common-law rules tablished interest of society, it is void, as of presumptions and practice, and estab- being against public policy.” In Brooks v. lish the public policy of the state on the Cooper, 50 N. J. Eq. 761, 21 L. R. A. 617, 35 subject of limitation of actions. They su Am. St. Rep. 795, 26 Atl. 978, the subject persede, not only the fictions of the common appears to have been thoroughly considered, law, but also supersede the hitherto uncon- and exhaustively treated. In summing up a trolled capacity of parties to themselves number of considered cases, the court wrote: limit the time in which either may rightful- “It has been declared that public policy is a ly appeal to the courts for redress under variable quality, but the principles to be aptheir contracts. Agreements in advance to plied have always remained unchanged and waive statutes of limitation altogether are unchangeable, and public policy is only variheld void on the grounds that such statutes able in so far as the habits, capacities, and are for the repose, the peace, and the wel opportunities of the public have become fare of society. Greenhood, Pub. Pol. 504; more varied and complex. The relations of Kellogg v. Dickinson, 147 Mass. 432, 1 L. R. society become from time to time more comA. 346, 18 N. E. 223; Trask v. Weeks, 81 plex, statutes defining and declaring public Me. 325, 17 Atl. 162; Green v. Coos Bay and private rights multiply rapidly, and Wagon Road Co. 10 Sawy. 625, 23 Fed. 67. public policy often changes as the laws

It is old and familiar doctrine that the change, and therefore new applications of courts will not enforce a contract by which old principles are required. Davies the parties have bound themselves not to Davies, L. R. 36 Ch. Div. 364. Whatever sue at all, or to leave the difference exclu- tends to injustice or oppression, restraint of sively to arbitrators. If parties by contract liberty, restraint of legal right; whatever can lawfully provide when the suit shall be tends to the obstruction of justice, a violainstituted (or when it shall not be, which tion of a statute, or the obstruction or peris the same thing), why not let them go fur- version of the administration of the law; ther within the same principle and stipu- whatever tends to interfere with or control late as to the nature of the action; whether the administration of the law as to execuit shall be tried by a jury, and what evidence tive, legislative, or other official action,shall be receivable to establish or impeach whenever embodied in and made the subject the right; and, by force of the same logic, of a contract, the contract is against public why not close the matter consistently by policy, and therefore void, and not suscepticoncluding how and out of what estate the ble of enforcement.” “When we speak of execution upon the judgment may be levied, the public policy of the state, we mean the and within what time the judgment of the law of the state, whether found in the Concourt may be enforced. If the fact be that stitution, the statutes, or judicial records.” by contract one party becomes bound to People v. Hawkins, 157 N. Y. 12, 42 L. R. A. another, the policy of the law is to regulate 490, 68 Am. St. Rep. 736, 51 N. E. 257. in what forums, by what nature of proceed. These citations will serve to show the scope ings, by what forms of practice, and within of the principle. Particular instances by what period it may be enforced. An agree way of illustration and application will be ment in advance not to apply to any court given further along. We cannot hope to for redress is admittedly void. An agree reconcile the public policy of this state with ment to confer jurisdiction upon a court not that of other states. Each state necessarily provided with it by law is likewise void. establishes its own public policy, confined to An agreement not to avail oneself of the its own territory. That they may not be statutes regulating practice would be held uniform throughout the Union is neither void for the same reasons. Now, the remain surprising nor discouraging; for wbat may ing question, Can a party bind himself by be deemed inimical by one may be treated an agreement in advance not to sue, not to as immaterial by another, and, indeed, may appeal to the courts having jurisdiction of be so. the matter, for fourteen years of the fifteen We will come directly to the question which are allowed by statute, thus confining whether statutes of limitation are in this himself to one fifteenth of the time the state indications of its public policy. The statutes give?

strength of every contract lies in the right It is difficult, if not inadvisable, to at of the promisee to resort to the courts of

public justice for redress for its violation. | in the Eubanks Case, 100 Ky. 604, 36 L. R. It is not enough that the parties may have A. 711, 66 Am. St. Rep. 361, 38 S. W. 1068. voluntarily agreed, nor that there was a sat- it was intimated that the contract was void isfactory consideration, nor that they have for the additional reason that it violated % contractual capacity; for, if one has in such 196 of the Constitution, prohibiting a comagreement bound himself to forego some mon carrier from contracting against its positive right given to him by the law by common- law liability. In the later Case of which justice is secured, he should not be Davis, 107 Ky. 527, 92 Am. St. Rep. 371, bound, for to do so is to bind oneself to op- 54 S. W. 849, the decision was rested solely pression, which is contrary to the well-being on the ground that the stipulation was void of society. Courts are established at the because contrary to public policy. It was public expense to redress wrongs, including probably doubted whether the statute of breaches of contracts. They are open at all limitation was any part of a common cartimes for that purpose. Such is the public rier's liability. good. The knowledge of that fact exercises A familiar feature of life insurance polino small influence upon the conduct of indi- vies is the provision that after a given numviduals. It is useless for the oppressor to ber of payments the insured shall be entitled try to get what he knows the courts will not to a paid-up policy proportioned as the numallow. So he regulates his conduct by ber of payments bear to the maximum numknowledge of that fact. Stale claims, if al- ber required to be made by the policy, prolowed, would tend to encourage perjury and vided the insured shall within six months, or fraud. Therefore a statute is passed to re- some such time, surrender his policy and destrict their assertion in the courts. On the mand the paid-up policy. In a number of other hand, claims which are not outlawed, cases it has been held that the provision limfor the reason just assigned, ought to have iting the time within which to demand the a forum in which they may be asserted paid-up policy was not of the essence of the against an unwilling or dishonest obligee. contract, was in the nature of a forfeiture, The existence of that right is of great value and was void. Montgomery v. Phænix Mut. to the claimant, but it is likewise of great L. Ins. Co. 14 Bush, 51; Mutual L. Ins. Co. importance to the public, as by it the weak V. Jarboe, 102 Ky. 80, 39 L. R. A. 504, 80 are assured of their rights against the Am. St. Rep. 343, 42 S. W. 1097 (Overrulstrong,—the sum of all government. A con- ing Northwestern Mut. L. Ins. Co. v. Bar. tract agreeing in advance that the obligee bour, 92 Ky, 427, 15 L. R. A. 449, 17 S. W. will not resort to the courts for its enforce- 796, and Hexter v. United States L. Ins. Co. ment after one year, when the statutes of | 91 Ky. 356, 15 S. W. 863); Washington L. the state allow fifteen years within which Ins. Co. v. Miles, 112 Ky. 743, 66 S. W. 740; to begin the action upon it, is merely an Manhattan L. Ins. Co. v. Patterson, 109 Ky. agreement not to resort to the courts, in 624, 53 L. R. A. 378, 95 Am. „St. Rep. 393, spite of the policy and laws of the state 60 S. W. 383; New York L. Ins. Co. v. Warwhich give the right. To enforce such is to ren Deposit Bank, 25 Ky. L. Rep. 326, 75 put it in the power of one party to practise S. W. 234; Manhattan L. Ins. Co. v. Savage, oppression, and to close the courts against 23 Ky. L. Rep. 483, 63 S. W. 278; Mutual its relief.

L. Ins. Co. v. O'Neil, 25 Ky. L. Rep. 983, Now for the instances in which the prin- 76 S. W. 839. ciple being discussed has been applied in Under $ 700, Kentucky Statutes, it is prothis state. In Wright v. Gardner, 98 Ky. vided that, in case of total loss of an in454, 33 S. W. 622, 35 S. W. 1116, an agree sured building by fire, the insurer shall pay ment in advance waiving the statute of limi- the amount of its policy, except in case of tation provided for that class of transactions fraud or deterioration in value since the pol. and extending the time beyond the statutory icy was issued. Contracts attempting in adperiod was held void, because against the vance of loss to waive the statute, and agree. public policy of the state.

ing upon a different basis of settlement, are An agreement in a contract between a tele held void as being against the public policy graph company and the sender of a message evinced by the statute, in Caledonian Ins. limiting the time to which claims should be | Co. v. Cooke, 101 Ky. 412, 41 S. W. 279; presented and prosecuted against the former Hartford F. Ins. Co. v. Bourbon County for a breach of the contract to a period Court, 24 Ky. L. Rep. 1850, 72 S. W. 739; shorter than that fixed by statute was held | Thuringia Ins Co. v. Malott, 111 Ky. 917, 55 void as against public policy in Western U. L. R. A. 277, 64 S. W. 991; Palatine Ins. Teleg. Co. v. Eubanks, 100 Ky. 604, 36 L. R. Co. v. Weiss, 109 Ky. 464, 59 S. W. 509. A. 711, 66 Am. St. Rep. 361, 38 S. W. 1068. A contract in advance waiving the statute This was followed and approved in Davis v. of exemption is held void in Mosley v. Western U. Teleg. Co. 107 Ky. 527, 92 Am. Ragan, 10 Bush, 156, 19 Am. Rep. 61. St. Rep. 371, 54 S. W. 849. It is true that 'Agreements to pay attorney's fee in case

of suit to enforce a contract are held void, to work a forfeiture of the vested interest because in contravention of the public policy, -a property right-because the person enin Thomason v. Townsend, 10 Bush, 114, and titled to it does not sue for it within an Witherspoon v. Musselman, 14 Bush, 214, 29 agreed time, less than the statutory period Am. Rep. 404.

of limitation. The Constitution of this state (8 59) pro The statutes of limitation of this state, hibits the legislature from passing special like statutes of exemption, are enacted, not or local acts concerning quite a number of solely for individual welfare, but for the enumerated subjects, including “(5) to public well-being. They are, under our Conregulate the limitation of civil or criminal stitution, of general and universal applicaactions.". Under this provision, it has been tion within the state, and are indications of held that a statute limiting actions against the state's public policy on those subjects. cities of the first class in this commonwealth Contracts in contravention of them are void. to six months, whether based upon torts or In Owen v. Howard Ins. Co. 87 Ky. 571, 10 contracts,—the general law providing dif- S. W. 119, the policy contained a provision ferent periods,—was void. Gorley v. Louis- that suit upon it must be begun within one ville, 104 Ky. 372, 47 S. W. 263; Louisville year from the accrual of the cause of acv. Kuntz, 104 Ky. 584, 47 S. W. 592. In the tion. The question presented for decision last-named case, it was said: “When the was whether the year had gone. The court Constitution prohibits the legislature from decided that it had not, as the last day of passing special laws upon any given subject, the year fell on Sunday, which was excluded it means that all laws upon that subject by the court so as to allow the 365th day shall operate alike upon all whether individ- to fall on a secular day, when the suit could ual or corporate, public or private. It is a

be filed. Having decided that the year had safeguard provided by the Constitution for not run, it was not necessarily involved the protection of the weak as well as the whether the stipulation was valid. The strong."

court, for the purposes of the case, assumed A contract between an express company that it was; and this it might have done, and a shipper, limiting its liability for a whether it was or, was not valid. In Kenbreach of its bill of lading to six months, tucky Mut. Security Fund Co. v. Turner, when the statutory period was longer, was 89 Ky. 665, 13 S. W. 104, a policy of life held void, as .contrary to public policy, in insurance contained a similar clause, limitAdams Exp. Co. v. Walker, 26 Ky. L. Rep. ing the cause of action to one year, should 1025, 67 L. R. A. 412, 83 S. W. 106.

a cause arise. A cause of action did accrue Unless these cases are to be followed, and upon it. Demand was made of the insurer the principle which governed them applied within one year, and it made a partial payto all cases, we will have it that everybody ment upon it. Failing to pay the balance, except express and telegraph companies may suit was brought upon the policy to recover by contract abrogate the statutes of limita- | it. The insurer pleaded the contract limitation by stipulating for a shorter period. tion. The replication, in avoidance, was Each contract will have its own barrier, that the partial payment had operated to which the courts will be bound to observe. start anew the period of limitation within And, though the legislature is prohibited by which suit might be brought. The question the Constitution from providing any but presented for decision, and decided, was that general and uniform laws of limitation, a partial payment within the year did operparties to contracts may have as many dif- ate to start anew the limitation period. A ferent periods as there may be contracts. recovery was allowed. Counsel for the Railroad operators, merchants, bankers, and plaintiff admitted that the one-year proemployers of labor may all contract for such vision was valid. The court likewise asperiods as may suit their whim or avarice, sumed that it was. There was no controto which the other party may be compelled versy about it in the case. It was passed to submit by his present necessities. It over in the opinion, without citation of would make the law a subject of barter, and authority or statement of reason for its supthe courts of justice to open or close as the port. As in the case of Owen v. Howard result of a dicker. It seems to us to Ins. Co. 87 Ky. 571, 10 S. W. 119, it was logically follow that, if part of a contract of obiter dictum. In Lee v. Union Cent. L. Ins. insurance is not forfeited by a failure to Co. 22 Ky. L. Rep. 1712, 56 S. W. 724, the comply with a stipulation in the policy that question was directly presented, and was it will be unless it is claimed within six finally decided on rehearing by an equally months, all of the policy will not be for- divided court. In Smith v. Herd, 110 Ky. feited by a similar failure to sue for it with 56, 60 S. W. 841, 1121, the question was in one year, according to the stipulations of again squarely presented, and was decided the policy to that effect. In each instance in conformity to the reasoning in Riddlesthe essence of the proviso in the policy is' barger v. Hartford F. Ins. Co. 7 Wall. 386,

« AnteriorContinuar »