Tatham v. Liverpool, London & Globe Insurance, 181 N.C. 434 (1921)

June 3, 1921 · Supreme Court of North Carolina

181 N.C. 434

JOHN TATHAM & CO. v. LIVERPOOL, LONDON AND GLOBE INSURANCE COMPANY.

(Filed 3 June, 1921.)

Insurance, Eire — Policy—Stipulations—Actions—Period of Limitation by Contract — Waiver.

Under tbe valid provision of a standard fire insurance policy, approved by statute, tbe period limited to twelve months from tbe time of loss by fire in wbicb an action may be maintained is not waived by tbe time taken under an agreement for an appraisal and award for tbe damage sustained by tbe insured.

Appeal by plaintiffs from Long, J., at January Term, 1921, of Haywood.

Civil action to recover upon two contracts of insurance. They were written by tbe defendant to cover a certain lot of lumber belonging to tbe plaintiffs and wbicb was destroyed by fire while said contracts were in force.

Tbe policies were issued on 18 January, 1918, and 12 April, 1918, respectively, and they contain tbe regular-standard provisions and stipulations as authorized and set out in chapter 109, Public Laws 1915. The loss occurred 1 June, 1918, and this suit was instituted 25 October, 1919. From a judgment of nonsuit, tbe plaintiffs appealed.

Felix E. Alley and, Merrimon, Adams & Johnston for plaintiffs.

Tillett <& Guthrie for defendant.

Stagy, J.

Tbe two policies in suit were issued under authority of chapter 109, Public Laws 1915. Each, contained, among other provisions; tbe following stipulation which was expressly prescribed and sanctioned by tbe statute law of tbe State then in force:

“No suit or action on this policy, for tbe recovery of any claim, shall be sustainable in any court of law or equity unless tbe insured shall have complied with all tbe requirements of this policy, nor unless commenced within twelve months next after tbe fire.”

Tbe loss occurred on 1 June, 1918, and suit was commenced 25 October, 1919, nearly seventeen months thereafter.. This was not in keeping with tbe terms of tbe policies as above set out. These contractual limitations and other substantially similar provisions have been upheld in a number of decisions. Holly v. Assur. Co., 170 N. C., 4; Muse v. Assur. 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; Faulk v. Fraternal Mystic Circle, 171 N. C., 302.

In explanation of the delay in commencing snit within the time fixed by the policies, plaintiffs contend that they were induced to defer action on account of the defendant’s conduct in agreeing to an appraisal and award of damages, etc., but we are unable to find in the record any waiver or action not contemplated by the terms of the contracts of insurance. Hayes v. Ins. Co., 132 N. C., 702.

As now presented, and upon the record, we think the judgment of nonsuit should be sustained.

Affirmed.