
    Greulich, Appellee, v. Monnin; Motorists Mutual Ins. Co., Appellant.
    (No. 29293 —
    Decided July 21, 1943.)
    
      
      Messrs. Faust, Faust & Faust, for appellee.
    
      Mr. Wilbur E. Benoy and Messrs. Shipman & Ship-man, for appellant.
   Weygandt, C. J.

The insurance company raises numerous questions, the first of which is procedural and arises by reason of the fact that in her first step against the company the plaintiff made the mistake of instituting a new and separate action, as formerly permitted, instead of filing simply a supplemental petition in the - original case, as provided by Section 9510-4, General Code, in its amended form.

This statute itself fixes no limitation of time within which such a supplemental petition may be filed, but the policy here involved provides that “no * * * action * * * shall be maintained * * * against the company * * * in any event unless brought within twelve (12) months after such loss shall.be ascertained * * * .” The plaintiff’s new and separate action'was instituted well within the period of one year after the date of her tort judgment, but her supplemental petition was not filed until nearly five months after the year had elapsed. ..She suggests two solutions .of this difficulty. First, she insists that the restriction in the policy is ineffective since it is shorter than the statute of limitation. However, this contention does not seem., to .have been presented-in either of the lower courts and was not discussed or decided. Furthermore, it is not now necessary to decide this question, inasmuch as this court is in agreement with the plaintiff and the lower courts as to her second solution of the problem. She contends that even if the shorter limitation of the policy be assumed to take precedence over the longer statutory period, her supplemental petition is entitled to the benefit of the saving provision of another statute, Section 11233, General Code, which relates to the commencement of actions and reads in part as follows:

“In an action commenced, or attempted to be commenced, if * * * the plaintiff fails otherwise than upon the merits, and the time limited for the commencement of such action at the date of *! * * failure has expired, the plaintiff * * * may commence a new action within one year after such date, and this provision applies to any claim asserted in any pleading by defendant * * V’

The contention of the plaintiff is that her new and separate action against the company failed otherwise than upon the merits. She says that the company filed’ a demurrer to her new petition, and that when she discovered her mistake in instituting a separate suit, the demurrer was sustained by agreement, and on the same day she proceeded to file her supplemental petition in the original action. The company insists that there was no agreement in connection with sustaining the demurrer. Be that as it may, the journal is in general terms and shows simply that the demurrer was sustained and the petition dismissed. There is nothing to show that the plaintiff’s cause was considered substantively on the merits. The plaintiff’s chief difficulty was that her petition was mislabeled and misnumbered, thereby constituting a typical instance of failure otherwise than upon the merits. However, the company contends further that this statute relating to the commencement of actions is wholly ineffective in the face of the one year provision in the policy. But this court finds no basis for engrafting on this broad and unambiguous statute an implied exception that would produce the regrettable result of denying to some litigants the right to commence a new action after a previous one has failed otherwise than upon the merits. On the contrary, this court in the case of Pittsburgh, C., C. & St. L. Ry. Co. v. Bemis, 64 Ohio St., 26, 59 N. E., 745, held that this Section 11233, General Code, should be liberally construed in order that controversies shall be decided upon important substantive questions rather than upon technicalities of procedure.

The company’s next contention is that the policy was not in effect when the collision occurred at 11:30 p. m., March 6, 1935. This question arises by reason of the failure of the company to specify the hour at which the insurance was to expire. The policy contained the definite provision that the insurance became effective at 12:00 o’clock noon on September 6, 1934. This was followed by the statement that such insurance “shall continue in full force and effect for the initial term of six (6) months and for such succeeding terms of six (6) months each as the guaranteed premium and/or premium is maintained or restored and/or paid as required by this policy.” The company contends that by inference the insurance expired at 12:00 o ’clock noon March 6, 1935. The plaintiff’s view is that if the coverage was terminated,on that day, the hour was 12:00 o’clock midnight at the end of that day. As above indicated, the collision occurred at 11:30 p. m. on that day.

In answering this question it is necessary to keep in mind the settled general rule that in case of ambiguity in an insurance policy the construction adopted must be most favorable to the insured; the language employed is that of the company, and it is consistent with both reason and justice that any fair doubt as to the meaning of its own words should' be resolved against it. Stroehmann v. Mutual Life Ins. Co. of N. Y., 300 U. S., 435, 81 L. Ed., 732, 57 S. Ct., 607; Mutual Life Ins. Co. of N. Y. v. Hurni Packing Co., 263 U. S., 167, 68 L. Ed., 235, 44 S. Ct., 90. Next is the equally well settled general rule summarized as follows in 39 Ohio Jurisprudence, 196, Section 10, under the subject of computation of time:

“Fractions of a day are not generally considered in the legal computation of time, and the day on which an act is done or an event occurs must be wholly included or excluded.
“The term ‘day,’ in law, embraces the entire day, and refers to a day as a unit of time, not as an aggregation of a certain number of hours, minutes, or seconds. In this sense, and for the purpose thus used, a day is not capable of subdivision into hours, minutes, or seconds, but is to be taken as a whole. In such computations the hours are not counted to ascertain whether a period of twenty-four hours or a given number of such periods have elapsed between the act to be done and the day from which the time is to begin running. The fractions of the days are no more taken into consideration than are the fractions of the seconds. The consequence is that every day and every part of that day is, by this rule, one day before every part of the succeeding day. The last moment of any day is, in contemplation of law in such cases, one day before the first moment of the next day, although the elapsed time is infinitesimal. The rule is strictly one of convenience. Any other method of computation would require an accurate account to be kept of the exact hour, minute, and second of the occurrence of the act to be timed, would produce endless confusion and strife, and would prove impolitic, if not wholly impracticable.”

Likewise, in the recent case of Garelick v. Rosen, 274 N. Y., 64, 8 N. E. (2d), 279, the following pertinent observation was made with reference to the expiration of an insurance policy:

“We believe that it is a matter of common knowledge as well as a principle of law that a contract which, by its terms, expires on a certain day, remains in force for the whole of that day unless by its express wording is limited to a certain time of the day upon which it expires. In the absence of an express limitation, the law does not take notice of a fraction of a day. ’ ’

The company places reliance upon premium notices sent to the insured, Monnin, indicating that the insurance would expire at noon March 6, 1935. But, of course, these notices were no part of the policy and could not alter its terms.

A fact to be noted is the failure of the company to treat the policy as having expired either at noon or at midnight on March 6th. According to the evidence, on March 5th Monnin wrote a check payable to the company for the amount of the premium for the next six months. Subsequently this check was mailed to the company and received by it March 8th. Instead of returning the check, the company cashed it and retained the money. Furthermore, the company did not cancel the policy; it did not notify Monnin that his policy had lapsed; it waived the reinstatment fee of $1 required by the policy; it required no written application for reinstatement of the policy. This conduct hardly can be reconciled with any theory of lapse or cancellation.

Another complaint of the company is that it was not notified of the collision in the manner required by the policy. However, the company both formally through the home office and informally through its local agent denied liability; and under the settled rule in this state such a denial constitutes a waiver of notice and proof of loss.

Consistent with these views the judgments of the lower courts must be affirmed.

Judgment affirmed.

Zimmerman, Bell and Turner, JJ., concur.

Matthias and Hart, JJ., dissent.

Williams, J., not participating.

Turner, J.,

concurring. The company accepted the overdue premium payment without objection and without extending the last six months ’ period. The policy was, therefore, in force at the time of the accident.

Hart, J.,

dissenting. I am unable to agree with the result reached in this ease by the majority of the members of the court. In my opinion, it is unnecessary to decide the procedural issues raised for the reason that the judgment should be resolved in favor of the' defendant on the basic issue that the policy of insurance was not in force at the time the injury to plaintiff occurred.

• The period of coverage provided in the insurance contract under consideration in this case is described or stipulated in the following language:

“Said insurance shall become effective at 12:00 o’clock noon, Eastern Standard Time, on the 6th day of September, 1934, and shall continue in full force and effect for the initial term of six months and for such suceeding terms of six months each as the guarantee premium and/or premium is maintained or restored, and/or paid as required by this policy * * * .”

The interpretation adopted by the majority of the members of the court relative to the commencement and termination of the contract, in my. opinion, completely reads out of such contract the words “at 12:00 o’clock noon, Eastern Standard Time.” The contract under all the rules of computation of time would be exactly as the majority interprets it if the policy had stated that it became effective from the 6th day of September and continued for a period of six months without naming any hour of the day for its commencement.

The fiction of disregarding fractions of a day in the computation of time has to do with the determination of the period within which an act required by law is to bé done. This method of computation, in such cases, is recognized and adopted by our statutes. See Sections 10216 and 10217, General Code. But this fiction, in my opinion, has no application where the accrual or termination of rights or liabilities, is specifically fixed in terms of fractions of a day; and such termination may be fixed, as in the instant case, by the expiration of a definite period of time after the accrual of the right of the insured or after the inception of the liability of the insurer. Since the policy specifically provides that it shall become effective at noon on a certain day, the contract clearly splits the day, as a result of which the rule disregarding the fractions of the day has no application. Richardson v. American National Ins. Co., 18 La. App., 468, 137 So., 370; Mathews v. Continental Casualty Co., 78 Ark., 81, 93 S. W., 55; Purvis v. Commercial Casualty Co., 160 S. C., 484, 159 S. E., 369.

This court in the case of Arrowsmith v. Hamering, 39 Ohio St., 573, 576, said:

“The rule that the law never regards the fractions of a day is only observed for the purposes of justice, but when its application would defeat a vested right, or otherwise work injuriously, it will not be applied. Thus in Seaman v. Eager, 16 Ohio St., 209, it was held, that the exact moment in a day might be resorted to, to determine the rights of parties arising under the acts relating to the filing and refiling of a chattel mortgage, and that time is' to be counted from the moment of such filing, and not from the day. The same rule was applied in Follett v. Hall, 16 Ohio, 111 [approved and followed in National Bank v. Burkhardt, 100 U. S., 686, 25 L. Ed., 766], where a mortgage was filed on the first day of a term of court, but before the court convened. So where an attachment was sued out at seven o’clock, p. m., of March 8th, and a petition in bankruptcy was filed at two o’clock and fifty minutes in the afternoon of the 8th day of July, it was held, that as the bankrupt act dissolved all attachments within four months before the commencement of proceedings in bankruptcy, and as the actual time was less than four months by four hours and ten minutes, the attachment must fall. Westbrook Man. Co. v. Grant, 60 Maine, 88.” This rule is now incorporated in Section 10217, General Code.

In the state of Wisconsin a statute prevails to the effect that “no action to recover damages for an injury to the person shall be maintained unless, within two years after the happening of the event causing such damages, notice in writing * .* * shall be served upon the person ór corporation by whom it is claimed such damage was caused.” In construing this statute, the Supreme Court of Wisconsin, in the case of Siebert v. Jacob Dudenhoefer Co., 178 Wis., 191, 194, 188 N. W., 610, said:

“In order, therefore, to comply with said section of the statutes, * * * it must appear that the notice referred to was served within two years after the happening of the event causing the damages. By referring to the complaint it will appear that it is alleged that the notice of injury was served within two years from the date of the injury. * * * The rule is well established on an issue of limitation where the time is to be computed from a certain date, that in the computation the day of the date is to be excluded, and, where the computation is from a certain event the date of that event must be included. McCulloch v. Hooper, 7 N. J. Law Jour., 336; Presbrey v. Williams, 15 Mass., 193; Aultman & Taylor Co. v. Syme, 163 N. Y., 54, 57 N. E., 168.” (Italics mine.)

If by chance the accident in the instant case had ■occurred at one o’clock on the afternoon of September 6, the date of the policy, no one, I believe, would contend that,there was no coverage by the policy in question. To have this effect the first day, to wit, September 6, must be counted. In my opinion, when an insurance contract provides that it is to begin at noon on a ■certain day and continue for a period of six months, it means just what it says, namely, that it expires at noon on the corresponding calendar day of the sixth calendar month after,the month in which the contract became effective.

Furthermore, resort to the legal fiction in the computation of time by which fractions of a day are disregarded, in my opinion, cannot serve the purpose of the plaintiff. The general rule is that where a contract is consummated on a certain date to continue for a month or year, the day the contract is executed is excluded and the last day included. State v. Elson, 77 Ohio St., 489, 83 N. E., 904; Neiswander v. Brickner, 116 Ohio St., 249, 156 N. E., 138. But, where, as in this case, by the specific terms of the policy, coverage began at noon on the sixth day of September to continue for six months from such date, the first day must be included and, therefore, the last day of the six-month period, to wit March 6, must be excluded. Verda Harlan Coal Co. v. Harlan National Bank, 229 Ky., 565, 17 S. W. (2d), 718; Salisbury v. Commonwealth, 254 Ky., 77, 70 S. W. (2d), 987. By such computation the policy expired at midnight March 5 and was not in force when plaintiff’s accident occurred át 11:30 p. m. on March 6.

In my opinion, the lapse of the policy was not waived by the acceptance of a renewal premium, for the reason that at the time of such acceptance the insurance company had not learned of the accident to plaintiff. The insured was not covered by the policy between the-date of expiration. and time of reinstatement. The policy expressly provides that “the company will not. pay any loss sustained between the date of lapse and the date of reinstatement.” It is to be observed that the receipt issued to the insured stamped ‘ ‘ reinstated-’ ’ and dated March 8, 1935, was executed prior to any notice or knowledge of the accident in question. There was no waiver of the provision for such suspension of liability of the company. Petersilge v. Crawford County Farmers Mutual Fire Ins. Co., 130 Ohio St., 385, 199 N. E., 845.

For the reasons given, in. my opinion, the policj^ in question was not in force after noon March 6, and the judgment in this case should be reversed.

Matthias, J., concurs in the foregoing dissenting opinion.  