
    INSURANCE — LIMITATIONS.
    [Mahoning (7th) Court of Appeals,
    October Term, 1915.]
    Pollock, Metcalfe and Houck, JJ.
    (Houck, J., of the fifth appellate district, sitting in place of Spence, J.)
    
      Joseph Cortesi, et al. v. Firemen’s Fund Insurance Co.
    New Action on Fire Insurance Policy not Barred by Lapse of More than Year after Fire, Former Action Having Been Dismissed Otherwise than Upon Merits.
    A clause which shortens the statute of limitations, as to the time for bringing suit on the contract in which said contract is incorporated, can not be enforced in the face of the provision of Sec. 11233 G. C., having reference to the time within which suit may be brought in cases which have failed otherwise than on the merits.
    [Syllabus by the court.]
    Error.
    
      T>. J. Hariwell and E. H. Moore„ for plaintiffs in error.
    
      J. W. Mooney, for defendant in error.
    
      
      Motion to certify overruled. Fireman’s Fund Ins. Co. v. Cortesi, 93 O. S. 000; 61 Bull. 783.
    
   HOUCK, J.

This is an action in this court on error to the judgment of the common pleas court of Mahoning county, Ohio.

The original action arose out of a policy of insurance issued by tbe Firemen's Fund Insurance Company on tbe property of tbe plaintiffs in error, tbe policy covering a building located in tbe city of Youngstown, Ohio, and in an amount not to exceed $1,200.

Tbe petition contained two causes of action; the first seek’ ing a reformation of tbe contract of insurance, and the second praying for a judgment on tbe reformed contract for tbe sum of $1,200.

Tbe cause was beard, and tbe contract of insurance was reformed as prayed for in tbe petition. Thereafter tbe cause came on for trial on the second cause of action, and tbe same was dismissed by tbe court for want of prosecution.

Thereafter, and within one year after the dismissal of tbe second cause of action, as aforesaid, but not within twelve months next after tbe fire, tbe plaintiffs in error filed their petition in tbe common pleas court, alleging therein that by a decree of said court tbe contract of insurance bad been reformed; the loss by fire of tbe building;‘the failure otherwise than upon its merits of tbe second cause of action in tbe former suit; a full compliance with all the terms and conditions of said policy, and prayed for judgment against tbe defendant for tbe sum of $1,200.

Tbe defendant filed an answer to said petition, alleging, among other things, that said policy of insurance contained tbe following provision:

“No suit or action on this policy, for the recovery of any claim, shall be sustainable in any court of law or equity until after full compliance, by tbe insured, with all tbe foregoing re- - quirements, nor unless commenced within twelve months after tbe fire. ’ ’

Tbe cause was submitted to a jury, and after tbe plaintiffs bad submitted their evidence the defendant moved tbe court to direct tbe jury to return a verdict for the defendant, upon the ground that the evidence disclosed the fact that the suit at bar had not been brought within twelve months after the fire; and thereupon tbe court sustained the motion, and tbe jury returned its verdict for the defendant. A motion for a new trial was filed, beard, and overruled, and judgment was entered on tbe verdict.

Error is prosecuted to tbis court seeking a reversal of tbe judgment of tbe court below for sustaining tbe motion for a directed verdict, and in overruling plaintiffs’ motion for a new trial.

Tbe question presented for determination is, Does tbe stipulation in tbe policy of insurance that “suit must be commenced within twelve months after tbe fire” abrogate and set aside tbe provisions of Sec. 11233 G. C., which provides:

“In an action commenced, or attempted to be commenced, if in due time a judgment for the plaintiff be reversed, or if tbe plaintiff fails otherwise than upon the merits, and tbe time limited for tbe commencement of such action at tbe date of reversal or failure has expired, tbe plaintiff, or, if be dies and the cause of action survives, bis representatives, may commence a new action within one year after such date.” * * *

Tbe stipulation in the policy that no suit could be maintained to recover on the policy, unless brought within twelve months after tbe fire, was intended to shorten tbe statute of limitations with reference to the time of bringing tbe action; but bow can it be properly claimed, or tbe contention of defendant in error sustained by any reasonable principle of law or justice, in the face of the provisions of Sec. 11233 G. C. ? Such a contract between tbe parties could not in any way abrogate, set aside and bold for naught tbe provisions of said section, stating as to when actions may be commenced unless they have been determined upon their merits.

Tbe action at bar was not determined upon its merits in the former suit, and after tbe dismissal of the former suit a new action was brought — tbe one at bar — within the year, and we think properly so. The plaintiffs never bad their “day in court” until tbe filing of the action and its trial in tbe present case.

The stipulation in tbe contract that “no action could be maintained on the policy unless commenced within twelve months after the fire, ” in no way waived or abrogated the rights of plaintiffs under Sec. 11233 G. 0. When the parties herein entered into the stipulation or agreement contained in the policy they must have, or at least should have considered it in the light of the provisions of said statute. It is presumed they knew the law, and that it was their intention to make their contract in conformity thereto, and if they did not do so the defendant in error can not now complain because it was in violation of and not in conformity with the provisions of the general statute governing the same. A contract for a shorter limitation does not control in face of the general statute, which must gov-, ern in such cases.

We have made a careful examination of the authorities cited by counsel in this case, and have examined many other authorities and decisions of courts, not only in our own but other states, bearing on the proposition before us, and we feel that the rule herein laid down is applicable to the case at bar. The case of Pittsburgh, C. C. & St. L. Ry. v. Bemis, 64 Ohio St. 26 [59 N E Rep. 745], while not directly in point, was a material aid to us in arriving at our conclusion.

A majority of the court is of the opinion that the judgment of the common pleas court should be reversed.

Judgment reversed, and cause remanded to the common pleas court for a new trial.

Metcalfe, J., concurs.

Pollock, J., dissents.  