
    Appel, Administrator, etc., v. Cooper Insurance Company.
    
      Contract of insurance may limit time for suit thereon — Provision in policy against action for recovery until compliance with certain requirements — Is unambiguous, when — Provision that suit must be commenced within'six months after the fire — Period of limitation runs from date of fire — Interpretation of contract— Fire insurance policy.
    
    1. The parties ,to a contract of insurance may, by a provision inserted in the policy, lawfully limit the time within which suit may be brought thereon, provided the period of limitation fixed be not unreasonable.
    2. A provision in a policy of fire insurance that, i‘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 the insured with all the foregoing requirements, nor unless commenced within six months next after the fire,” is unambiguous, and in a suit on the policy commenced more than six months after the date of the fire, will be enforced in accordance with the plain meaning of its terms, where no extrinsic facts are alleged excusing delay in bringing the suit.
    3. Where a policy of fire insurance contains the provision, that no suit or action shall be sustained thereon unless commenced' within six months next after the fire, the period of limitation begins to run from the date of the fire,, notwithstanding the policy also contains the provision “that the loss shall not be payable until sixty days after proofs of loss have been received by the company.”
    (No. 10015
    Decided February 26,' 1907.)
    Error to the Superior Court of Cincinnati.
    On the 19th day of June', 1901, the Cooper Insurance Company"'of Dayton, Ohio, issued a policy of insurance to Emily Appel, whereby it insured her against all direct loss or damage by fire to an amount not exceeding fifteen hundred dollars, for the period of one year from the 19th day of June, 1901, to the 19th day of June, 1902, at noon, upon certain property described and located as follows: “On merchandise, principally millinery goods, manufactured and in process, and materials used in manufacturing same, owned or held in trust or on commission, or sold but not removed, while contained in the brick, metal-roof building occupied by assured as a manufacturer and wholesale and retail milliner, at No. 312 on the north side of Fourth street between Plum street and Central-avenue, Cincinnati, Ohio.” It was by said policy of insurance among other things provided:
    “That if a fire occur the insured shall give immediate notice of the loss; separate the damaged and undamaged personal property; make an inventory of the same; and within sixty days after the fire make proof of loss. And further in the event of disagreement as to the amount of loss the same shall be ascertained by two competent and disinterested appraisers, the insured and said company each selecting one appraiser, and the two so chosen shall select a competent and disinterested umpire; the said appraisers together shall estimate and appraise the loss stating separately sound value and damage, and, failing to agree, shall submit their differences to the umpire; and the award in writing of any two shall be binding upon both parties as to the amount of such loss, and further that the loss shall not become payable until sixty days after the proof of loss has been received'by the company, including an award by appraisers when appraisal has been required.” Said policy contained the further provision that: “No suit or action on this policy for the recovery of any claim, shall be sustained in any court of law or equity until after full compliance by the insured with all the foregoing requirements, nor unless commenced within six months next after the fire.” The property insured was damaged by fire which occurred about nine o’clock A. M. on September 9th, 1901. There being a disagreement as to the amount of the loss, the same was, under the terms and provisions of said policy submitted to appraisers on September 18th, 1901, which appraisers duly selected an umpire. Thereafter, a report or award signed by one appraiser and the umpire was made and' returned on October 9th, 1901. The proof of loss was filed with the Insurance Company on October 10th, 1901, and thereupon, by the terms of said policy, the amount of said loss became due and payable on December 10th, 1901. Suit was not commenced against the Cooper Insurance Company to recover said loss until June 4th, 1902. After the issues in the case were made up, the cause, by consent of parties, was, by the superior court in special term, referred to Rufus B. Smith, for trial of the issues both of law and fact arising therein, and said referee was ordered to report his findings and decision to said court without unnecessary delay. Thereafter, a separate finding of law and fact having been requested, said referee on July 29, 1905, made his report to said superior court stating therein separately, his findings of fact and his conclusions of law. One of the facts found by the referee was: “That there was due and owing to the plaintiff from the said defendant by reason of the premises the sum of $833.58, with interest from the tenth day of December, 1901.” But said referee as a conclusion of law found and decided: “That the plaintiff is not entitled to recover from the said defendant the sum of $833.58, with interest from December tenth, 1901, or any other sum, for the reason that plaintiff did not file his petition on or before six months from the ninth day of September, 1901.” Upon the report of the referee being, filed in the superior court, the plaintiff in error, Harry Appel, as administrator, etc., moved the court to render judgment for plaintiff against the Insurance Company for the sum of $833.58, with interest as claimed in the petition, on the conclusions of fact found by the referee; or in the alternative, to set aside the report of the referee and grant a new trial for error of law in the finding of the referee that the plaintiff Harry Appel, as administrator, etc., was not entitled to recover from the defendant. This motion was overruled by the superior court in special term and judgment was entered for the Cooper Insurance Company. The case was taken on error to the superior court in general term, which affirmed the judgment of the court in special term. Plaintiff in error now asks that the judgments of the superior court, both in general and special term, be reversed, and that a judgment be entered by this court in favor of the plaintiff in error and against the Cooper Insurance Company, for $833.58, with interest from December 10th, 1901.
    
      Mr. Frank Seinsheimer and Mr. John R. Sayler, for plaintiff in error,
    cited and commented upon the following authorities:
    
      Travelers’ Ins. Co. v. California Ins. Co., 1 N. Da., 151; Metropolitan Life Ins. Co. v. Gierl, 16 C. C., 294; 57 Ohio St., 671; Daly v. Concordia Fire Ins. Co., 65 Pac. Rep., 416, Insurance Co. v. Scales, 101 Tenn., 628; German Ins. Co. v. Davis, 40 Neb., 700; Sample v. London & L. Fire Ins. Co., 46 S. Car., 491; Read & Traversy et al., v. State Ins. Co., 103 Ia., 307; 4 Cooley on Insurance, 3972; Kirk & Co. v. The Ohio Valley Ins. Co., 6 W. L. B., 200; Steel v. Phoenix Ins. Co., 51 Fed. Rep., 715; Fidelity & Casualty Co. v. Love, 111 Fed. Rep., 775; Kettenring v. N. W. Masonic Aid Assn., 96 Fed. Rep., 177; Portage County M. F. Ins. Co. v. West et al., 6 Ohio St., 599; Hogg v. Beerman, 41 Ohio St., 81; Section 5213, Revised Statutes.
    
      Messrs. Cabell & Kohl, for defendant in error,
    cited. and commented upon the following authorities :
    
      Kettenring v. N. W. Masonic Aid Assn., 96 Fed. Rep., 177; Steel v. Phoenix Ins. Co., 51 Fed. Rep., 715; Williams, Receiver, v. German Ins. Co., 90 App. Div., 413; Allen v. Dutchess, etc., Ins. Co., 95 App. Div., 86; King v. Watertown Fire Ins. Co., 47 Hun, 1; Daly v. Concordia Fire Ins. Co., 16 Col. App., 349; Hart v. Citizens Ins. Co., 86 Wis., 77; Riddlesbarger v. Hartford Ins. Co., 7 Wallace, 386; Thompson, Receiver, v. Phoenix Ins. Co., 25 Fed. Rep., 286; State Ins. Co. v. Meesman, 2 Washington, 459; Kirk & Co. v. Ohio Valley Ins. Co., 6 W. L. B., 200; Meyer v. Metropolitan Life Ins. Co., 9 Ohio Dec., 596; Corn City Mutl. Ins. Co. v. Schwan, Assignee, 1 O. C. D., 105; Coldham v. Pac. Mutl. Life Ins. Co., 2 Ohio Dec., 305, 57 Ohio St., 657; Metropolitan Life Ins. Co. v. Gierl, 16 C. C. 295.
   Crew, J.

This case is one of a series of cases brought into this court by proceedings in error from the Superior Court of Cincinnati, and the question involved is, as to the liability of the defendant company for its proportionate amount of the loss and damage occasioned by fire to a certain stock of millinery goods the property of one Emily Appel, which stock, at the time of the fire, was insured in the defendant company. The facts of this case are hot different from those presented and decided by this court in the cases of the Fire Association of Philadelphia, and the several other insurance companies holding concurrent risks upon said property at the time of the fire, — which cases are reported in this volume at page ' 568; except, that the policy of insurance in the present case, issued by the defendant in error the Cooper Insurance Company, differs from the policies issued by the other companies, in that, it provides that no suit or action shall be brought thereon “unless commenced within six months next after the fire,”— whereas the limitation provided in each of the other policies is twelve months. All the questions raised or suggested in the present case were decided and disposed of in the cases above referred to, excepting only that of the construction and effect proper to be given to the clause of the policy herein sued on which provides that “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 the insured with all the foregoing months next after the fire.” We need, therefore, in the present case consider only this one question. No claim is made in this case either in the pleadings, in the briefs of counsel, or in oral argument, that the six-months limitation prescribed by the above clause of the policy in suit, is an unreasonable limitation. It would seem to be conceded by counsel for plaintiff in error that such limitation is valid and binding, but, they -contend that the time as limited by this clause of the policy commences to run, not from the date of the fire, but'from the time when, under other provisions and stipulations of the policy, the loss becomes due and payable. In other words it is their contention that this clause construed and considered in connection with the other provisions of the policy, especially the provisions requiring proof of loss, submission to arbitration, and the provision that the loss shall not become due and payable until sixty days after proof thereof has been furnished to the company, — contemplates a suspension of the limitation during the time required for the performance of these conditions, and shows it .to have been the intention to allow the assured six full months from and after the accrual of his cause of action within which to bring his suit. It must be admitted that the authorities are in sharp conflict upon this question and that cases are not wanting which support the claim made by counsel for plaintiff in error, that under a limitation clause such as that contained in the policy here in suit, the time of limitation within which the assured must bring his action does not commence to run from the date of the fire, although in terms so expressly stipulated in the policy, — but that such limitation commences to run only from the time the loss becomes due and payable. While the courts which have adopted this rule of computation are not in every instance agreed upon the reasons for so deciding, they have generally placed their decisions upon the ground that there exists such apparent inconsistency and conflict between the provision in the policy postponing the right of the assured to bring suit thereon' until sixty days after the proof of loss has been furnished tó the insurance company, and the provision limiting the time within which the assured may commence his action, as to render the latter clause ambiguous and uncertain and to require that these alleged conflicting stipulations be harmonized by judicial construction. And proceeding to construe said provisions, they hold, that the words “within six months next after the fire,” found in said limitation clause," must, in order to give effect to the intention of the parties, yield to other stipulations of the policy, not more certain in terms, and said limitation clause therefore be construed as giving to the assured six full months in which to bring his suit, exclusive of the time, when' under other provisions of the policy suit could not be brought. We can not assent to the doctrine of these cases, which has for its support no other predicate than that of the claimed necessity for harmonizing these alleged conflicting provisions. The conflict claimed to exist between these provisions, would seem to us to be rather imaginary than real. The two provisions, while separate and distinct in office and purpose, are nevertheless entirely compatible, and they need no interpretation in language other than their own, which would seem to be so plain and unambiguous, as to be susceptible of but one meaning. By the one provision it is stipulated that the assured may not sue before a certain time, and by the other that he shall not sue after a certain time. The language of the policy is not, as assumed, that the assured shall have full six months in which to bring suit after certain things therein specified are done by him; but that he shall have six months within which to do and perform the things required, and to bring suit; so that, unless we are to ignore the plain language of the contract, and.by construction, hold that it means one thing, when it clearly and plainly says a different thing, we must conclude that the obvious meaning of the contract is, that no action shall be brought by the assured against the company until performance by him of those things required to be performed as conditions precedent tó his right to sue, and in no event after the expiration of six months. To hold otherwise is, it seems to us, to substitute by construction another and essentially different contract for the one made and entered into by the parties themselves. But it is argued, that if this construction of the contract is to obtain, that because of the provisions of the policy requiring proofs of loss,— the production of books and papers, and the submission to appraisers of the question of the amount of loss, etc., etc., — all of which will necessarily consume time, that cases may arise in which the time when suit must be brought will have elapsed, and the action be barred, before the right to sue has accrued. The answer to this is obvious. A provision by way of limitation in a contract of insurance which does not leave to the assured a reasonable time in which to bring suit after his cause of action accrues is void and of no effect, and, if acting in good faith, and with proper diligence, it happens in a particular case that other provisions of the policy required to be complied with by the assured as a condition precedent to his right to sue, can not be performed by him and leave a reasonable time thereafter in which to-bring suit, the limitation will be held unreasonable and inoperative. Or, if in any case such provisions should be used and employed by the insurer, for the sole purpose of delay, they would be held to be suspended or waived. Thus the insured is fully protected under his contract as written, when construed according to its plain terms, by merely applying thereto well known and well established'principles of construction. The contract of insurance is a voluntary contract, and the insurer has a right to designate and prescribe the terms and conditions upon wliich it will consent to become liable in case of loss, and stipulations in policies of insurance that give to the insurer a certain time after proofs of loss are made in which to pay, and provisions limiting the time within which suit shall be brought, are universally sustained by the courts with the qualification only that such provisions and limitations must be reasonable. In the present case the rpcord discloses that the fire which occasioned the loss occurred September 9, 1901. The proofs of loss were filed with the company October 10, 1901.' The loss became due and payable, under the provisions of the policy, bn December 10, 1901. There yet remained, therefore, to the assured, after full compliance with all the requirements of the policy, three of the six months, within which to bring his suit. But no suit was commenced on said, policy until June 4, 1902, nearly nine months from the time of the fire. The claim is made here that the insurance company waived the six months limitation of the policy, by entering into the negotiations for the amicable adjustment and settlement of this loss. As to this we think it sufficient to say, that not only was this claim found against the assured by the referee, and by both the courts below, but so far as the record discloses' there was nothing at any time pending these negotiations to prevent the assured from bringing suit if he had seen proper to do so. Furthermore, it is admitted that all negotiations were fully concluded, as early as February 1, 1902, still leaving forty days of the six months next after the fire, within which suit could have been brought, yet no excuse is made, or explanation attempted, as to why suit was not then instituted, but was delayed until June 4, 1902, which was five months and twenty-four days, after the cause of action had accrued, and the right to sue had become perfect, and almost nine months after the date of the fire. No suit having been brought on this policy within six months next after the fire, and no facts appearing in this case which justify or excuse the delay in bringing the same, it must be held, that at the tipie of the commencement of this action, on June 4, 1902, the plaintiff’s right to maintain a suit on this policy was barred by his contract. Prior to the present, time the only expression by this court in any manner bearing upon the particular question here involved, was in Portage County M. F. Ins. Co. v. West et al., 6 Ohio St., 600, which would seem to sustain the view now taken by us, if the same rule of construction may be applied to a contract that is applied to a statute. That the rule of construction is the same as to each, will not, we think, be questioned. The conclusion reached by us that the limitation clause in this policy means exactly what it says, and that the limitation begins to run from the date of the fire, finds direct support in the following well con-, sidered cases:

Egan v. Ins. Co., 29 Ore., 403; Hart v. Ins. Co., 86 Wis., 77; King v. Ins. Co., 47 Hun, 1; Chichester, Admr., v. Ins. Co., 74 Conn., 510; McFarland v. Accident Assn., 5 Wyoming, 126; Rottier v. Ins. Co., 84 Minn., 116; The State Ins. Co. v. Stoffels, 48 Kan., 205; Ins. Co. v. Meesman, 2 Wash., 459; Fullam v. Ins. Co., 7 Gray, 61; Wilhelmi v. Ins. Co., 103 Iowa, 532; Travelers Ins. Co. v. California Ins. Co., 1 North Dakota, 151; Glass v. Walker, Assignee, 66 Mo., 32; Johnson et al. v. Ins. Co., 91 Ill., 92; Daly v. Ins. Co., 16 Col., 349; Ins. Co. v. Little et al., 20 Ill. App., 431.

Plaintiff in error having permitted the* six months next after the fire to elapse without bringing suit, there remained thereafter no legal liability on the part of the Cooper Insurance Company to respond in damages for the loss sustained, and the judgments of the courts below must be

Affirmed.

Shauck, C. J., Summers and Davis, JJ„ concur.  