Ward v. Pennsylvania Fire Insurance

Mississippi Supreme Court
Ward v. Pennsylvania Fire Insurance, 82 Miss. 124 (Miss. 1903)
Whitfield

Ward v. Pennsylvania Fire Insurance

Opinion of the Court

Whitfield, J.,

delivered the opinion of the court.

The case of Ghio & Co. et al. v. Western Assurance Co. et al., 65 Miss., 532; 5 South., 102, is conclusive of the validity of the stipulation in the policy that no suit should be brought except within one year from the time of the loss. The case of Riddlesberger v. Hartford Fire Ins. Co., 7 Wall., 386; 19 L.Ed., 257, settles two propositions: First, that where there is a valid contract stipulation as to the time within which suit must be brought, statutory provisions cannot enlarge that time; and, second, that “the specified contract period is not extended for purposes of a second action by an action commenced within time, but which failed to be prosecuted to judgment.” In other words, the action which must be brought within the specified contract period is the action which shall afterwards be prosecuted to judgment. See vol. 19 of the Lawyers Edition of the United States Supreme Court Reports, at page 257, for the case of Riddlesberger v. Hartford Fire Ins. Co., and page 908 of Rose’s notes for the citations of this case in subsequent cases of the United States Supreme Court affirming the two propositions above; these notes of Mr. Rose being incorporated in said volume 19 at end of 7 Wallace as therein reported. Section 2756 of the Annotated Code of 1892 has no application to a contract which fixes its own period of limitation as to time within which a suit may be brought. And section 2758a embraces only those eases where a plaintiff is “prohibited by law,” etc., “from commencing or prosecuting an action,” and, of course, has no application to a case like this, where the plaintiff was not “prohibited by-law from commencing or prosecuting his action,” but dismissed his suit voluntarily, because he had willfully violated the law himself in not paying the proper privilege tax. To hold the plaintiff entitled to the protection of this section would be to put a premium upon willful violation of law.

Affirmed.

Reference

Full Case Name
Elbert A. Ward v. Pennsylvania Fire Insurance Company
Cited By
1 case
Status
Published
Syllabus
1.Fire Insurance. Policy. Stipulation as to time within wMch to sue. Statute of limitations. Where a fire insurance policy provided that suit thereon must be brought, if at all, within a designated time, the provision is valid, and the time is not extended by the statute of limitations. 2.Same. Previous suits dismissed. Code 1892, ? 2756. In such case where suit is brought after the expiration, oí the contract time it makes no difference that a previous suit, which was dismissed, had been brought within the time, nor is the case aided by code 1892, § 2756, providing that if any action brought within the time limited by the- statute of limitations be defeated for matter of form, or the judgment be arrested after verdict for plaintiff, he may bring a new action within a year from the abatement or other determination of the first suit. 3. Same. Primilege tax. Code 1892, $ 3401. Amnesty act. Laws 1902, ch. 55. In such case a plaintiff who could not recover in a suit begun before the expiration of the contract time, because he had not paid his privilege tax (code 1892, § 3401), and who consequently dismissed his suit, cannot recover in a second suit, begun after the expiration of the time, although he had, before bringing the latter suit, availed himself of the amnesty act (laws 1902, ch. 55), relieving him from the consequences of not having paid the tax. 4. Same. Prohibition to sue. Injunction. Code 1892, g 2758a. In such case a plaintiff is not aided by code 1892, § 2758a, providing that when any person shall be prohibited by law or enjoined from commencing any action, the time during which he shall be so prohibited or enjoined shall not be computed as part of the time limited by the statute of limitations within which' suit may be brought.