Boyle v. N. C. Mutual Insurance, 52 N.C. 373, 7 Jones 373 (1860)

June 1860 · Supreme Court of North Carolina

52 N.C. 373, 7 Jones 373

FRANCIS A. BOYLE v. N. C. MUTUAL INSURANCE CO.

Under a charter for mutual insurance against loss by fire, it was Meld that every member of the-eompany is bound by the conditions annexed to the policies through the by-laws.

Where one of the by-flaws of a mutuaLmsuranee oorapany required that the insured, within thirty days after loss by fire, should give notiee to the company, specifying the amount of less, the manner of it, and other particulars •as a condition to his right to roeover, it was Held that a declaration to the insured by a travelling agent of ’the company, that “ the matter would be all right with the company,” was not a waiver of the necessity of such notiee.

■{The case of Woodfin v.. Asheville Mutual Insurance Co^ 6 Jones’ Rep. 558, cited arid-approved.)

Tnis was an action of covenant, on a .poliey of insurance •against fire, tried before Dick, J., at the last Spring Term of Washington .Superior Court

The plaintiff having proved the destruction, by fire, of the house insured, and the execution of the .policy by the defendant, the defendant moved that the plaintiff be nonsuited, on the .ground, that the plaintiff had not complied with the stipulation of the contract of insurance as contained in thoeompa<ny’s by-laws, and especially the terms of the following provision, which is section 10 in the pamphlet containing the haws of the company:

“ All persons insured by this company, and sustaining loss ■or damage by fire, are, forthwith, to give -notice thereof to the secretary, and, within thirty da3rs after said loss, to deliver a particular account of said loss or damage, signed with their own hands, and verified by their oath or affirmation, and «also, if required, by their books and accounts and other proper vouchers. They shall also declare, under oath, whether aany, or -what other insurance has been made upon the -property, wliat was the whole value of the property insured, when .and how the fire originated, so far as they may know, ■or have reason to believe, .and what their interest in the property insured was, at the time ■of the loss or damage sustained. They shall also procure certificates under the hands of a magistrate, notary public or clergyman, most contiguous to the place of the fire, and not concerned in the loss or related to the insured or sufferers, that he is acquainted with the character and circumstances of the person or persons insured, and knows, or verily believes, that be, she, or they really, and by misfortune, and without fraud or evil practice, hath or has sustained, by such fire, loss and damage to the amount therein mentioned, and, until such proofs, declarations, and certificates are produced, the loss shall not be deemed payable ; and shall state, whether since the time of effecting such insurance, the risk has been enhanced by any means whatever. And any misrepresentation or concealment, or fraud or false swearing by the insured, in any statement or affidavit in relation to the said loss or damage, shall forfeit all claim by virtue of the policy, and shall be a full bar to all remedies upon the same.”

In regard to the notice, the evidence was, that one of the. agents of the company was present at the fire; that some ten or fifteen days after its occurrence, the travelling agent of the company was in Plymouth, and, in conversation with the plaintiff, said, that the matter would he all right with the eompam/y.

Upon this, the plaintiff’s eounsel insisted that this was evidence of a waiver of notice and a promise to pay without it, and was matter to be submitted to the jury; but his Ilomor thought otherwise, and ordered a nonsuit, from which the plaintiff appealed.

Wmston, Jr., for the plaintiff.

W. A. Moore and J. II. Bryan, for the defendant.

Manly, J.

The ease of Woodfin v. Asheville Mutual Insurance Company, 6 Jones’ Rep. 558, decides the point that the insured, in such a company, are members of the corpora'tion, and bound by the conditions annexed to-the policies through the by-laws. In the by-laws of tb.e defendant, (the North Carolina company) it is required by the 10th section, that all persons insured and suffering loss, shall forthwith give notice thereof to the secretary, and within thirty days after said loss, deliver a particular account of said loss or damage, signed with their own hands, and verified by their oath or affirmation. They shall also declare, under oath, whether any and what other insurance has been made on the property — what was the whole value of the same — what the loss and what the interest of the insured in the property at the time; and until such proofs, declarations and certificates be produced, the loss shall not be deemed payable, &c.

A compliance with these conditions is necessary, in order to fix the liability of the company upon an}' of its policies. In the case referred to, of Woodfin v. The Asheville Co., it will be found that the conditions there in question, were similar, in all respects, to those above quoted from the by-laws of the North Carolina company. So that the case is in point to the extent, that unless the conditions of these policies be strictly complied with, the insured cannot recover: — except a compliance be in some way dispensed with by the company.

The only open question, therefore, apparent upon the caséis, did that which is stated to have occurred between the plaintiff and a person, denominated “ the travelling agent” of the company, amount to any evidence of a waiver-of the requirements of the by-laws?

We concur with the Court below, in the opinion, that it did not. The travelling agent said to the plaintiff, in a conversation in Plymouth, “ the matter would be all right with the company.” It is not stated to what this declaration was a response, or in what connection it was made, and we are unable to see that it tended, of itself, in any way, to prove that the agent undertook for the company that it should pay at all events. It seems to be merely an affirmation on the part of the agent, that the company will comply with the obligations of the policy. It dispenses with nothing, but rather implies a warning that all must also be right with the insured. The declarations, under oath, prescribed in the 10th section of the by-laws, are required to be made to the secretary of the company — doubtless, for the company’s action.

In the-absence of all proof upon the subject, a power to dispense with or waive, would reside only in the president and directors eoUegeálitiír, and one who is simply described as a travelling agent, cannot be presumed to have that power. Our inferences, if at liberty to draw them, would be, that the agent was employed to guard the company, by .observation and enquiry, against imposition, not to'dispense with the safeguards, which it has thought proper, in other ways, to throw around itself.

But whatever may be the scope of the travelling agent’s duties and powers, we are ofopinion, that what occurred between him and the plaintiff, afforded no evidence ©f a waiver on the part of the company, of the conditions of the policy as contended in the 10th section of the by-laws.

Per Curiam,

Judgment affirmed.