action shall be commenced reaffirmed the principles announced in the Metropolitan Life, supra, that such a contractual provision was perfectly lawful and binding. These were reaffirmed in principle in Arold v. Supreme Conclave I. O. H. (supra) (not reported). MASSACHUSETTS Lewis vs. Met. Life Ins. Co., 180 Mass. 317, 62 N. E. 369. Paul vs. Fidelity & Casualty Ins. Co., 71 N. E. 801, 186 Mass. 413. MICHIGAN— Barry & Finan. Lumber Co. vs. Citizens' Ins. Co., 136 Mich. 42, 98 N. W. 761. Law vs. New Eng. Mut. Acc. Ass'n, 94 Mich. 266, 53 N. W. 1104. MISSISSIPPI Ohio vs. Western Assur. Ass'n, 5 So. R. 102. NEBRASKA German Ins. Co. of Freeport vs. Davis, 40 Neb. 700, 59 N. W. 698. NEW YORK Williams vs. Fire Ass'n of Phila., 104 N. Y. Supp. 100. Sweetser vs. Met. Life, 28 N. Y. Supp. 543. Allen vs. Dutchess Co. Mut. Ins. Co., 88 N. Y. Supp. 530. In this case the certificate was issued in 1882, and at that time neither the certificate nor by-laws contained a limitation of time for commencing an action. In 1899 the Order added to its by-laws a provision requiring suit to be brought within one year. The member agreed to conform with the by-laws "now in force or which may hereafter be adopted." The Court said, on page 316: "Under these conditions all by-laws, regularly adopted by the appellant, became retrospective as well as prospective in their operation and effect upon Hall and his beneficiaries except as to rights which had become fixed or vested by the terms of the original contract." And at the bottom of page 318, the Court further said: "The application and certificate contain the same provisions as do the by-laws and constitution of the two societies, and the principles there enunciated control the disposition of the issues presented here to the extent of requiring a decision that the amendment adopted and limitation added, if valid, regular and in accordance with the provisions of the appellant's constitution, were not void or inoperative because of rights in Hall or his beneficiaries which had become fixed or vested in them by the terms of the original contract. . . . They became part of contract between the appellant and Hall, bound him and his beneficiaries, and therefore require a reversal of the judgment." People vs. American Steam Boiler Co., 41 N. Y. Supp. 631, 10 App. Div. 9. NORTH CAROLINA Lowe vs. Ass'n, 115 N. C. 18, 20 S. E. 169. OHIO Frudential Ins. Co. vs. Hawle, 19 Ct. Rep. 621. Appel vs. Cooper Ins. Co., 80 N. E. 955, 76 Ohio 52. OREGON Egan vs. Ins. Co., 29 Ore. 403, 42 Pac. 99. PENNSYLVANIA Mooney vs. Supreme Council R. A. 90 Alt. (Pa.) 132. RHODE ISLAND— Wilkinson vs. Ins. Co., 27 R. I. 146, 61 Atl. 43. TEXAS Suggs vs. Ins. Co., 9 S. W. 676, 71 Tex. 579. International Travelers' Ass'n vs. Bosworth, 156 S. W. (Tex.) 346. VERMONT John Morrell & Co. vs. New England Fire Ins. Co., 71 Vt. 281, 44 Atl. 358. VIRGINIA Ins. Co. vs. Aiken, 82 Va. 424. WASHINGTON Meesman vs. Ins. Co., 27 Pac. 77. WISCONSIN Griem vs. Casualty Co., 75 N. W. 67, 99 Wis. 530. FEDERAL Steel vs. Ins. Co., 51 Fed. 715. WHEN CONTRACT PROVISION CANNOT SUPERCEDE STATUTE. There are cases in which it has been held that the contractual limitation in a policy of insurance for a shorter period than that provided for in the Statute of Limitations cannot be successfully pleaded. These cases, however, are where statutes of the respective states clearly prohibited such contractual limitations within the contract prior to the execution of the contract. They are as follows: Mass. Benefit Life Ass'n. vs. Hale, 96 Ga. 102; 23 S. E. 849. Phoenix Ins. Co. vs. Perkins, 101 N. W. 1110. In an Iowa case it was held that the limitation specified by contract is valid unless such contractual provision is expressly prohibited by statute-Farmers Co-Operative Creamery Co. v. Iowa State Ins. Co., Iowa, 84 N. W. 904, when the Court said, that a six months limitation in a fire policy was valid where the loss occurred before the enactment of the Code of 1897, providing that the time within which action can be brought under such contracts shall not be limited to less than one year. The statute, it was held, undertakes to limit contract rights, which cannot be destroyed if vested before it took effect. CASES WHERE CONTRACT LIMITATION BY AFTER ENACTED BYLAWS IS HELD INVALID. Attorney General vs. Supreme Conclave A. L. H., 81 N. E. (Mass.) 966. In this case there was a provision that suit was to be brought within one year from the time when such action accrued, and it was provided that such right of action accrued ninety days after all proofs called for had been furnished. The Court held that the by-law was invalid as against the certificate issued before it was promulgated. In the Massachusetts case supra the Court followed the rule announced in Butler v. Supreme Conclave Amer. L. of H., 186 N. Y., 514, 78 N. E. 1101, affirming 105 App. Div. 164, 93 N. Y. Supp, 1012. The Massachusetts case involved the identical by-law that had been before the Court in the Butler case supra. In the Butler case the New York Court decided that the provision of limitation having been passed, subsequently to the member's admission into the Order, it was not retroactive, saying: "In the absence of a distinct agreement between the society and the holder of the certificate, the Court said that an agreement assuming the application to be a part of the contract between the certificate holder and the society to conform to the laws in force or which may hereafter be adopted, was in the nature of a personal covenant." The Court further said that it would be a strained construction under such an after enacted stipulation to hold the beneficiary bound by an amendment which would abridge his right then existing under the contract to the full six years Statute of Limitation, stating, "that on good authority such provision relates only to the member's duties to the association." These two cases, however, were decided upon the question of the binding effect of an after-enacted by-law, and did not involve the soundness of the rule laid down in Riddlesbarger supra, and which now seems to be the accepted law in all jurisdictions. The provisions of the contract prescribing the time within which suit may be maintained, may be, by the acts of the officers, in some cases, waived. For example: Where delay is induced by action of defendant, one year limita-. tion is no bar. Williams vs. Bankers Union of Chicago, 166 Ill. App. 495. Also One year limitation in policy is not enforceable, where constitution provides that no suit can be brought until proof of loss presented and passed upon by order, it appearing proof of loss had been presented three months after death and not passed upon within the one year. McEvoy vs. Court of Honor, 163 Ill. App. 566. WAIVER As to what may or may not constitute waiver is not a pertinent inquiry within the scope of this paper. The facts in each case usually control. The provisions prescribing the time within which suit must be, brought have been, by many societies, provided by amendment to their laws. AFTER-ENACTED LAWS. The question of the validity of after-enacted laws has been thoroughly reviewed in many excellent papers presented to this section. The courts in nearly every state of the Union have passed thereon. With only a few exceptions the Courts, State and Federal, have sustained after-enacted laws (where the contract provides that the member will be bound thereby), if such after-enacted laws are reasonable. The touch-stone in almost every case has been the reasonableness of the amendment. |