Tebbets v. Fidelity and Casualty Co.

HENSHAW, J.

This action was brought to recover insurance, upon the death of F. F. Tebbets, under the terms of an accident life-insurance policy. Insured died September 4, 1904. Action was not commenced until April 5, 1905. The policy provided that affirmative proof of the death of the insured must be furnished the company within two months after its occurrence and that “legal proceedings for recovery hereunder may not be brought before the expiry of three months from the date of filing proofs at the company’s home office, nor brought at all unless begun within six months from time of death.” A general demurrer interposed to the complaint was sustained. From the judgment which followed plaintiff appeals.

The demurrer was properly sustained. The general rule, supported by the great weight of authority, is that a condition in a policy of insurance, providing that no recovery shall be had thereon unless suit be brought within a given time, is valid, if the time limited be in itself not unreasonable. In the following citations to text-books a vast number of authorities to this effect will be found collated: 4 Cooley on Insurance, p. 3964; May on Insurance, p. 478; 2 Beach on Insurance, sec. 1259; 4 Joyce on Insurance, sec. 3181; 1 Am. & Eng. Ency. of Law, p. 325; 1 Cyc. 281. This rule it will be found is that of the supreme court of the United States

(Riddlesbarger

v.

Hartford Ins. Co.,

74 U. S. 386), and most

[139]

of the states of the union. In this state the principle is recognized and declared in

Case

v.

Sun Ins. Co.,

83 Cal. 473, [23 Pac. 534]. Appellant places his reliance upon the case of

Union Central Life Ins. Co.

v.

Spinks,

119 Ky. 261, [83 S. W. 615]. That case holds, upon grounds of public policy, that the statute of limitations may not thus be shortened or waived. Such is not the rule in this state, where such statutes are regarded as statutes of repose, carrying with them, not a right protected under the rule of public policy, but a mere personal right for the benefit of the individual, which may be waived.