Merchants' Mutual Insurance v. Lacroix

Citations

• 35 Tex. 249

Syllabus

<p>1. A condition in a fire insurance policy that “ all claims under this policy are barred, unless prosecuted within one year from the date of the loss,” is a lawful and valid stipulation. It is not in contravention of public policy, nor is it incompatible with or merged in the limitation laws of the State. (By a majority of the court—Presiding Judge Evans reserving an opinion on this question.)</p> <p>3. A fire insurance policy stipulated that claims under it must be “prosecuted ” within a limited time after the loss. Held, that the presentation of the loss, and a demand of its payment, are not such a prosecution of the claim as is meant by the policy. The policy means a prosecution by a suit or action.</p> <p>:3. A limitation created by contract, and requiring suit to be brought within a given time, is not affected by the forty-third section of the twelfth article of the present State Constitution, which declares that the statutes of limitation were suspended from January 38, 1861, until the approval of the Constitution by Congress, on March 30,1870; nor have the rulings in the case of Bender v. Crawford, 33 Texas, 745, any relevancy to such a limitation by contract.</p> <p>-4. Presiding Judge Evans dissents from the disposition made of this cause by the majority of the court, and holds that there was such evidence of a waiver by the insurance company of the plaintiff's •delay in bringing his suit, and also such evidence that the delay was ■in great part attributable to the company itself, as would justify an affirmance of the judgment rendered against the company by the court below.</p>