Maynard v. Insurance Co. , 76 N.H. 275 ( 1911 )

The provision in the policy limiting the time within which suit must be brought was legal and binding (Davis v. Insurance Co., 73 N.H. 425; Johnson v. Casualty Co., 73 N.H. 259), and the case discloses no evidence that the defendant waived this provision or that it is estopped to insist upon it. According to the contract, the plaintiff could maintain no action upon the policy after six months had elapsed from the date when affirmative proof of his disability should be filed. Proof of his disability was due June 15, 1907, but it was not filed with the defendant until July 5. It is unnecessary to consider whether the defendant had waived the time limit as to the filing of the proof of disability; for there is nothing to show that it waived the provision that suit should be brought within six months after the filing of proof of disability. "The policy provided a definite time when the proof should be filed; and the fact that it was not filed at that time had no necessary effect upon the limitation of time for the bringing of a suit." Davis v. Insurance Co., supra, 426.

Although the defendant accepted the plaintiff's proof of disability after the time limited in the policy and may have waived its right to claim that it was not seasonably filed, that fact does not prove that it also waived the provision as to bringing suit within six months from the filing of the proof. The proof was presented to the defendant July 5, 1907. According to the terms of the policy, it should have been presented June 15. If the defendant so far modified the contract as to be bound by the receipt of the proof July 5, it is difficult to see why in consequence of that transaction it abrogated the provision that suit must be brought within six months from that date. If the defendant, denying all liability, had waived the filing of proof and none had been filed, a different question would have arisen. See Norwich etc. Co. v. Insurance Co., 6 Blatch. 241; Phillips v. Society,120 Mich. 142. The correspondence between the parties or their counsel, which is relied upon to prove a waiver, was merely an attempt to adjust the matter without litigation and was brought to a close on August 3, 1907, when the plaintiff's counsel stated that he would bring suit before September 1; and if he had done so, the action would have been within the prescribed limit. The correspondence did not amount to a waiver. 19 Cyc. 908.

The fact that the defendant admitted in the correspondence its liability for a part of the amount claimed by the plaintiff is no evidence that it intended to waive the limitation of time contained in the policy within which a suit must be brought. If it had in the first instance admitted its liability for the full amount claimed by the plaintiff, it would be illogical to say that it thereby waived this clause of the policy and in effect agreed to respond to a suit brought long after the time specified in the policy. The fact of a waiver, like other facts, must be found from some evidence. Nor does it appear that the plaintiff was induced by the correspondence to believe that the defendant would not insist upon this clause of the policy. Apparently he understood the contract, but for some reason not disclosed did not bring his suit until after the limited time had expired. This delay was not chargeable to or caused by the defendant, as in Dolsen v. Insurance Co., 151 Mich. 228, cited by the plaintiff. The court properly ordered a nonsuit.

Exception overruled.

All concurred.