Other Special Cases. company to the owner and assured can- surers his cause of action against a wrong not be availed of as a defense or in mitigation of damages, in a suit brought by the assured against party whose negligence caused the loss. Harding v. Town of Townshend, 1 Ins. L. J. 685; 43 Vt. 536. 95.-It seems that an insurance company acquires no right by subrogation until full payment of the loss to the assured. People's Ins. Co. v. Straehle, 2 Cin. Supr. Ct. 186. See cases under "Remedy of Insurance Company," supra. Nos. 72 et seq. doer through whose act a loss occurred, 523. 98. The holder of a mechanic's lien on buildings that are burned while insured for and in the name of their owner does not hold the insurance fund by right of subrogation. Rackley v. Scott, 61 N. H. 140. 96.- One Forbes, owner of the build- 99. A transaction by which an insuring in question, leased it to another by ance company pays to a person, who holds the name of Bonner, by a lease which them as collateral security, the full rendered the latter bound to repair, "ex- amount of certain policies whose validity cept damaged by fire, destruction by is in dispute, and closes the account on storm or tempest of the building or any its books, and directs the assignment of part thereof, or destruction by foreign the debt secured by the policies to a third enemies." Forbes insured the house by a person, who pays nothing for it, while the policy against fire, covering injury by ex-owner of the property insured is insolvent, plosion of gas. In 1877 the corporation constitutes a payment, and not merely a of Brighton, while repairing the streets purchase of the policies, inasmuch as it with a steam railway, owing to its great would, if considered as a purchase, be a weight damaged a pipe and caused an es- fraud on the debtor and his other credcape of gas into the building, where it ex-itors. Brown's Appeal, 57 Conn. 66; 17 ploded and did considerable damage. Atl. Rep. 320. Forbes sold the house and the policy to a 100.- A town insurance company, orthird party, and after some negotiation ganized under Laws 1872, chap. 103, which the insurance company paid the latter the has been compelled to pay a loss caused sum of £750. The lessee received from by a fire started through the negligence the corporation of Brighton the amount of a railroad company, may take an assignof damage done to the house by the ex-ment, from the assured, of the whole claim plosion, and with the sum received rein- for damages, exceeding the amount paid stated the house. At the time the insurance company paid to the purchaser the sum of £750, they were not aware that, by the terms of the lease, the lessee was bound to make good the injuries done by 101.- Where the owner of cotton delivan explosion of gas. The insurance com-ered to a compress company as agent for pany, upon learning that the building had a carrier, under an agreement that the been reinstated by the lessee, claimed from the purchaser the sum which had been paid by them, £750, and upon his refusal brought an action to recover it. Held, that such action would lie, and that defendant was liable; that the company, upon payment of the loss, was subrogated to all the rights of the assured as against the lessee, and that, when the latter did repair, the insurance company must have the benefit. Darrell v. Tibbetts, L. R. 5 Q. B. Div. 560 (Eng.) 97.- In the absence of an express covenant by the assured, to assign to the in by it, and recover the full amount thereof from the railroad company. Hustisford F. Mut. Ins. Co. v. Chicago M. & St. P. R. Co., 66 Wis. 58. compress company shall procure insurance thereon, has himself procured insurance, an advancement or loan by the insurer of the amount of its policy is a payment of the insurance which will prevent a recovery by either the insurer or the owner for the failure of the compress company to procure insurance, although made on the express condition that it shall be repaid upon such recovery, and though the insurance contract required such loan to be made. *Deming v. Merchants' Cotton Press & S. Co., 13 L. R. A. 518; 17 S. W. Rep. 89; 90 Tenn. 306. Statutory Provisions. 106. Cross references. Section one. 102.- Failure of the insured to state the plaintiff has received insurance money the fact that he had released a railroad upon a policy obtained by himself indecompany on whose right of way his build-pendent of the railroad company. *Regan ing was erected from any liability for fire v. New York & N. E. R. Co., 22 Atl. Rep. caused by its locomotives is not material, 503 (Conn.) where the insurance company makes no difference in rates with or without the right of subrogation, and there is no usage or custom showing the materiality of such right of subrogation among insurance companies. *Pelzer Mfg. Co. v. St. Paul F. & M. Ins. Co., 19 Ins. L. J. 372; 41 Fed. Rep. 271. 103.- Two insurers who have paid the full value of property destroyed by fire while in the possession of a railroad company, to the owners, become at once entitled to any claim of such owners against the railroad; and a subsequent assignment of such claim by the owners to one of such insurers is of no effect. *Platt v. Pennsylvania R. Co., 26 Jones & Sp. 587, mem.; 11 N. Y. Supp. 632. 104.- As to right of removal to U. S. Circuit Court in case of a bill to enforce trusts and subrogation arising out of a loss by fire where parties are numerous and incorporated in different states. *Ins. Co. N. A. v. Delaware Ins. Co., 50 Fed. Rep. 243. 105.- A railroad company is not entitled to a reduction of damages, in an action under Conn. Gen. Stat. § 3,581, making it liable for loss by fire set from its locomotives, and giving it an insurable interest in property along its line, because 39 Subd. IX. Insurable interest. Nos. 153, et seq. Subd. XIII. Subd. XIV. Construction. No. 23. Subd. IX. Change in interest, etc. Nos. 249, 260. Subd. X. Assignment. No. 87. Section thirteen. Mortgagor and mortgagee, etc. Nos. 8b, 20, 22, 28, 36, 59, 71, 76, 79, 94, 107, 127, 127a, 128a, 148, 159, 163. Section twenty-one. Limitation. No. 102. STATUTORY PROVISIONS. 107. Canada, Quebec. Insurer on paying the loss is entitled to transfer of rights of insured against the person by whose fault loss was caused. Sharp Civ. Code, 1888, § 2,584. 108. Wisconsin. Railroad company has an insurable interest in property along its road for which it may be liable in damages for fires. 1 San. & B. Annot. Stat. Wis., 1889, § 1,828a. SECTION XXI. 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 twelve months next after the fire. New York Standard Form. New mainly in prescribing the fire as the commencement of the period. I. LIMITATION. General rules. public policy, nor is it merged in the gen- When limitation commences to run. 4.-An action to recover damages by fire cannot be sustained unless brought within the time specified in the com ance of action. Relief in equity. Waiver. Other special cases. in the policy and the contract made subject to it; and notice by registered letter to the insured of the disallowance of his claim by the directors is a prudent method of giving notice. Higgins v. Windsor, etc., Ins. Co., 54 Vt. 270. 5.- Where a policy provides that suit for a loss shall be commenced within twelve months after such loss, the suit is barred unless within that time the sum for the purpose of being served. Hekla Ins. Co. v. Schroeder, 9 Bradwell, 472 (III.) 1. General rules. Where policy provided "that no suit or action at law or in equity shall be maintained against the company, upon or by virtue of this pol-mons in the suit is delivered to the sheriff icy, unless the same shall be brought within six months from the time of the loss or damage by fire; and after the expiration of six months from such fire, such lapse of time shall be conclusive evidence against the validity of any claim under this policy," held, that the stipulation was binding, and proof of the waiver of it must be positive. Schroeder v. Keystone Ins. Co., 2 Phil. 286 (Pa.) 2. It is competent for the parties to a policy of insurance to provide therein that no action shall be maintained thereon for any loss after the lapse of a certain time after such loss; but such condition will not be enforced when so necessarily inconsistent with the nature of the interest insured as to render a recovery unattainable by the exercise of due diligence. Longhurst v. Star Ins. Co., 19 Iowa, 364. 6.- A suit is commenced by mere issue of a summons, without delivering it to any one authorized by law to serve it. Schroeder v. Merchants and Mechanics' Ins. Co., 12 Ins. L. J. 9; 104 Ill. 71. 7.- Parties to policies of insurance have a right to limit, by conditions therein, the time in which action may be brought to recover for losses of property insured; and such agreement will bar an action brought after the expiration of the agreed time. Moore v. State Ins. Co., 72 Iowa, 414; 34 N. W. Rep. 183. 8. A stipulation in a fire insurance policy, limiting the period within which suit thereon shall be brought to a period shorter than the period prescribed in the Statute of Limitations for the institution thereof is valid, and is a condition preVirginia F. & M. Ins. Co. v. 3.- The limitation clause is not against cedent. When Limitation Commences to Run. that time. Westchester Fire Ins. Co. v. Dodge, 9 Ins. L. J. 909; 44 Mich. 420. Wells, 83 Va. 736; 3 S. E. Rep. 349; Virginia F. & M. Ins. Co. v. Aiken, 82 Va. 424; Ghio v. Western Assur. Co., 65 Miss. 12.- Policy provided that no action 532; 5 So. Rep. 102; Underwriters' Agency should be sustainable unless commenced v. Sutherlin, 55 Ga. 266; Davidson v. within twelve months next after "the Phoenix Ins. Co., 4 Sawyer, 594 (U. S. loss shall occur." Held, the loss should be Cir.); Glass v. Walker, 66 Mo. 32; Tas- deemed to “occur" when the company ker v. Kenton Ins. Co., 58 N. H. 469; pays it, or is lawfully called upon to pay Spare v. Home Mutual Ins. Co., 13 Ins. it. That the limitation did not begin to L. J. 280; 19 Fed. Rep. 14; Phonix Ins. run until the loss became due and payCo. v. Lebcher, 20 Ill. 450; Cray v. Hart- able. Hay v. Star Fire Ins. Co., 77 N. Y. ford Fire Ins. Co., 1 Blatch. 280 (U. S. 235; s. P. Mix v. Andes Ins. Co., 9 Hun, Cir.); Ketchum v. Protection Ins. Co., 1 397; rev'd, 74 N. Y. 53, on another point; Allen, 136 (N. B.); Williams v. Vermont | Ellis v. Council Bluffs Ins. Co., 64 Iowa, Ins. Co., 20 Vt. 222; Dutton v. Vermont 507; Chandler v. St. Paul Ins. Co., 21 Ins. Co., 17 Vt. 369; Portage Co. Ins. Minn. 85; Barber v. Ins. Co., 16 W. Va. Co. v. West, 6 Ohio, 599; Amesbury v. 658. Bowditch Ins. Co., 6 Gray, 596 (Mass.); Fullam v. N. Y. Union Ins. Co., 7 Id. 61; Brown v. Roger Williams Ins. Co., 5 R. I. 394; 7 R. I. 301; Brown v. Savannah Ins. Co., 24 Ga. 97; Northwestern Ins. Co. v. Phoenix Oil Factory, 31 Pa. 448; Hickey v. Anchor Assur. Co., 18 Up. Can. Q. B. 433; Carter v. Humboldt Ins. Co., 12 Iowa, 287; Peoria Ins. Co. v. Whitehill, 25 Ill. 466; Patrick v. Farmers' Ins. Co., 43 N. H. 621; Rousseau v. Royal Ins. Co., 1 Mont. Supr. 395 (Can.); Woodbury Sav-"it shall accrue" or became due and payings Bk. v. Charter Oak Ins. Co., 31 Conn. 518; Roach v. N. Y. and Erie Ins. Co.. 30 N. Y. 546; Ripley v. Etna Ins. Co., 30 N. Y. 136; Keim v. Home Ins. Co., 42 Mo. 38. 9.- Notes on limitation of time for suit. See 1 L. R. A. 847; 7 Id. 572; 8 Id. 48, 769. 10. When limitation commences to run. The policy required suit to be commenced "within six months after any loss or damage shall accrue," and gave the company sixty days to pay in, after adjustment of preliminary proofs. Held, it was meant that the six months should begin after the right of action accrues, and the assured has six months and sixty days after date of preliminary proofs and after date of the last correction of proofs. Mayor of N. Y. v. Hamilton Fire Ins. Co., 39 N. Y. 45; Killips v. Putnam Ins. Co., 28 Wis. 472, 484. 11.- When company has the option to rebuild, it seems the period prescribed for the commencement of a suit does not commence to run until company has determined not to rebuild, as claim does not ripen into a money demand until after 13.- Limitation commences to run from the time of the fire. Chambers v. Atlas Ins. Co., 51 Conn. 17; Carraway v. Merchants' Ins. Co., 26 La. Ann. 298; Johnson v. Humboldt Ins. Co., 91 Ill. 92; Peoria Sugar Ref'y Co. v. Canada Fire and M. Ins. Co., 12 Ont. App. 418 (Can.) 14.- In Steen v. Niagara Ins. Co., 11 Ins. L. J. 523; 89 N. Y. 315; the Court construed the words "next after the loss or damage shall occur," as meaning after 66 able. The Court however expressly recog- 16.— When policy provides that suit must be brought within six months after fire occurred, the provision should be construed with the conditions precedent to loss becoming due and payable, and the limitation commences to run not from the When Limitation Commences to Run. occurrence of the fire, but from the expir- v. Watertown F. Ins. Co., 47 Hun, 1; 14 N. Y. S. Rep. 93; *Bradley v. Phonix Ins. Co., 28 Mo. App. 7; State Ins. Co. v. Meesman, 2 Wash. 459. ation of the sixty days when loss becomes payable. Friezen v. Allemania Fire Ins. Co., 16 Ins. L. J. 513; 30 Fed. Rep. 352; Vette v. Clinton Fire Ins. Co., 16 Ins. L. J. 598; 30 Fed. Rep. 668. 21. The six months named in a policy as the time limited for bringing a suit thereon runs from the date of the loss, and not from ascertainment of the amount, although sixty days are given for proof of loss, and sixty days after that for payment. *Grigsby v. German Ins. Co., 40 Mo. App. 276. 17.- Where the policy provided that no suit should be brought hereon unless commenced within one year after the loss, but it also prescribed that the company would pay the loss in sixty days after proofs thereof were furnished, -held, that the year for bringing suit did not begin 22. If a part of the time limited for to run until the lapse of the sixty days the commencement of a suit upon an infrom the proofs of loss. Miller v. Hart-surance policy is consumed in negotiations ford F. Ins. Co., 70 Iowa, 704. with a view to a compromise, whereby the plaintiff is deterred from suing, such time should be added to the original time. App. 548; aff'd, 133 Ill. 220. 18.- The six months' limitation for suit on a policy of insurance begins to run at the close of the time allowed the com-*Allemania F. Ins. Co. v. Peck, 33 III. pany for payment, and not from the actual loss, where the policy provides that proofs of loss must be made within thirty days after the loss, and suit brought within six months from the same date, and also provides that the loss shall be paid in sixty days after proof of loss. *Murdock v. Franklin Ins. Co., 7 L. R. A. 572; 19 Ins. L. J. 319; 33 W. Va. 407; 10 S. E. Rep. 777. 19. The time for bringing suit on a policy which provides that no suit or action shall be commenced unless within twelve months next after the fire, and also provides that a claim on the policy shall be due and payable sixty days after full completion by the assured of certain requirements of the policy, is not lost by the expiration of the twelve months after the fire, where a cause of action has not then accrued by completion of such requirements, if the company has insisted on these requirements and the insured has complied as rapidly as he was able. *Case v. Sun Ins. Co., 8 L. R. A. 48; 83 Cal. 473; 19 Ins. L. J. 1,050; 23 Pac. Rep. 534. 20.-Where a policy of fire insurance provides that action thereon must be brought within a specified time after the loss occurs, the limitation runs from the date of the fire, although under other provisions of the policy the cause of action does not accrue until some time after the fire. *Travelers' Ins. Co. v. California Ins. Co., 1 N. Dak. 151; 8 L. R. A. 769; 19 Ins. L. J. 636; 45 N. W. Rep. 703; *King 23. The limitation of one year "from the date of loss," within which an action must be brought upon an insurance policy providing that the loss must be proved and ascertained, runs from the time the loss is payable, and not from the time of the fire. *Sun Mut. Ins. Co. v. Jones, 15 S. W. Rep. 1,034; 54 Ark. 376. 24.- An action upon a policy of insurance providing that proofs of loss shall be furnished within thirty days and that the company will pay the loss ninety days after proofs of loss have been received by it, and that an action must be commenced within six months after the loss, is commenced in time if brought within six months after the expiration of the ninety days. *German Ins. Co. v. Fairbank, 49 N. W. Rep. 711; 21 Ins. L. J. 83; 32 Neb. 750. 25. A limitation in a policy of fire insurance, of the time in which action may be brought thereon, to twelve months from the date of the fire occasioning the loss, runs from the date of the fire, and not from the date at which the loss is ascertained or payable. *Steel v. Phœnix Ins. Co., 47 Fed. Rep. 863; 21 Ins. L. J. 242; *State Ins. Co. v. Stoffels, 29 Pac. Rep. 479; 48 Kans. 205. |