Brown v. Roger Williams Ins. Co. Brown v. Hartford Ins.

Counsel

Bradley Metcalf, for the defendant: — I. The record must be construed by the court, and by that it appears that the actions in the Circuit Court and in this court are not by the same party, or by his successor, in the sense of the law, so that the one shall prevent the other from being barred by the statute of limitations. II. The provision in the contract of insurance contains no exception for such a case as is set up in the replication, and no exception whatever; and it is not the province of the court to modify that contract, or insert such an exception. III. The exception in some statutes of limitation, in this regard, can no more be introduced into this case than the other provisions of such statutes making six years, for instance, rather than one year, the period within which suit is to be brought. IV. All the analogies of the law are against this replication. The principle is, that one suit wrongly brought and dismissed for causes other than those specifically named in the statute, or abated by the death of the plaintiff, does not prevent the bar of the statute in another case, as in cases of nonsuit. Angell on Limitations, § 328, and cases cited. So, where a suit in chancery is dismissed because there is a remedy at law. Ibid, § 329. And even where an injunction has been granted. Ibid, § 329. T.A. Jenckes, for the plaintiff: — I. The law limits the bringing of actions on contract to six years, the contract, in this case, to one. The suit was brought within the time limited in the contract, in which no judgment has been rendered, but a perpetual stay of proceedings interposed by an arrest of judgment after verdict. The case having been originally commenced in this court, the result is the same as if arrived at here. Under the plaintiff's replication, this proceeding upon the contract is, in effect, one continuous suit. The terms of the contract are satisfied if suit is commenced within twelve months after the loss or damage shall have occurred; and if no judgment has ever been rendered in favor of the defendants, but they have taken advantage of a technical defect to suspend judgment against them, and further proceedings are instituted to avoid the technical defects, the plaintiffs are violating the spirit and letter of their contract, and endeavoring to use it for a harsh and illegal purpose, when they attempt to set it up in bar of such further proceedings. The language of the stipulation is, that the lapse of time, without suit, "shall be taken and deemed as conclusive evidence against the validity of the claim." Where suit has been commenced within the time, and it has failed to result in a judgment for either party, the lapse of time cannot be held to be conclusive, or even presumptive, evidence as to the validity of the claim. This stipulation as to time has already been sustained against the authority of learned courts and amid conflicting decisions, and its effect should not be amplified. II. The declaration sets forth the policy, and the stipulation relied upon is part of the record. The plea is bad, because it does not follow the stipulation. The language of the stipulation is, that suit must be brought within "twelve months next after the loss or damage shall occur." The plea avers, that the suit was not brought within twelve months next after his, the plaintiff's, cause of action (if any) accrued to him. As this contract is an attempt to vary the rights of the parties from what they would be under the statute law, it must be construed strictly and pleaded with exactitude. The stipulation set up in the plea is widely different from that in the policy, is a fatal variance from it, and furnishes no defence to the declaration.