Holly v. London Assurance Co., 170 N.C. 4 (1915)

Nov. 3, 1915 · Supreme Court of North Carolina

170 N.C. 4

JOHN C. HOLLY v. THE LONDON ASSURANCE COMPANY.

(Filed 3 November, 1915.)

Insurance, Fire — Policy Contract — Stipulation as to Suit — Limitation of Actions — Disability—Interpretation of Statutes.'

The provision in the standard form of fire insurance policy, sanctioned by statute, Revisal, section 4809, that'suit thereon will not be sustained unless commenced within twelve months after the fire, is valid, and resting by contract between the parties, is not regulated by the statute of limitations, and the disabilities which stop the running of the statute, Revisal, section 362 (3), have no effect upon it. Hence, the imprisonment of the insured will not affect his right to recover when he has delayed his action for more than a year.

Appeal by defendant from Rountree, J., at the May Term, 1915, of New HaNovee.

Action brought by the plaintiff to recover of the defendant the amount of loss claimed to have been sustained on account of damage by fire to the property insured, upon a contract of insurance. The case was heard upon complaint and demurrer. From the judgment overruling the demurrer the defendant appealed.

O. D. Weelcs, W. J. Bellamy for the plaintiff.

B. K. Bryan for defendant.

BeowN, J.

Tbe policy sued on is attached to tbe complaint and is in form tbe regular standard policy authorized by tbe statutes of-this State. Among other provisions, it contains tbe following:

“No suit or action on this policy, for tbe 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 requirements, nor unless commenced within twelve months after tbe fire.”

One of tbe grounds of demurrer is that it appears upon tbe complaint that tbe fire loss occurred 10 August, 1910, whereas, as appears upon tbe summons, this action was commenced 22 October, 1913, and therefore not within tbe twelve months as required by tbe policy. Tbe provision of tbe policy is sanctioned by tbe statute, Rev., 4809, and has been upheld as a reasonable and valid protection to tbe company. Muse v. Assurance Co., 108 N. C., 240; Lowe v. Accident Assn., 115 N. C., 18; Hovey v. Fidelity and Casualty Co., 200 Fed., 925; Modlin v. Ins. Co., 151 N. C., 35; Gerringer v. Ins. Co., 133 N. C., 414; Parker v. Ins. Co., 143 N. C., 339.

In order to excuse tbe failure to commence bis action within tbe time fixed by tbe policy, tbe plaintiff alleges that be was continuously imprisoned from 10 August, 1910, to some date (not given) in 1913 in tbe common jail of New Hanover County. Plaintiff claims tbe benefit of this disability. Rev., 362, subsec. 3.

Tbe twelve months clause in tbe policy is not a statute of limitation, but a contractual limitation. Parker v. Ins. Co., supra. It is a valid contract entered into between tbe parties, and tbe disabilities which stop tbe running of a statute of limitations have no effect upon it. Such a stipulation is binding even upon a minor, who must abide by it. Heilig v. Ins. Co., 152 N. C., 358.

Tbe demurrer should have been sustained.

Reversed.