Whitehurst v. North Carolina Mutual Insurance, 52 N.C. 433, 7 Jones 433 (1860)

June 1860 · Supreme Court of North Carolina

52 N.C. 433, 7 Jones 433

HENRY P. WHITEHURST v. NORTH CAROLINA MUTUAL INSURANCE COMPANY.

A requisition in a policy of insurance, that the assured shall forthwith give notice of a loss, to the- company, is not complied with by giving notice at the expiration of twenty days.

ActioN of COTENANT, on a policy of insurance against loss by fire, tried before SauNdees, J., at the last Spring Term of Craven Superior Court.

covenant declared on, and the loss of the building insured, by fire, were proved, and the defendants, for defense, alleged that the plain tiff had not complied with the stipulation contained in the contract, to give the company no-of the destruction of the property, also, a statement of the particulars of the destruction ; and they relied on the following clauses in the policy, and annexed conditions. In the policy is provided: “this policy is made and accepted in reference to the conditions hereunto annexed, which are to be used and resorted to in order to explain the rights and obligations of the parties hereto, in all cases not herein otherwise specially provided for.”

The condition on the contract of assurance, is as’ follows: “10. All persons insured by this company, and sustaining loss or damage by are forthwith to give notice thereof to the secretary, and within thirty days after said loss, to deliver a particular account of such loss or damage, signed with their own hands, and verified by their oath or affirmation.”

The was, the insured furnished the company with the affidavit containing the particular account of the loss, but there was no evidence that any other notice of the loss was given by the insured to the company. Ilis Honor held that the notice furnished, was a compliance with the terms of the contract on the part of the plaintiff. Defendant excepted.

Yerdict and judgment fendant.

Stevenson and Oreen, for the plaintiff.

J. W. Brya/n and Ilaughton,

Pearson, C. J.

We differ from his Honor upon the first point, by the plaintiff, and forwarded to the secretary of the compapany, was not, in the opinion of this Court, a full compliance with the condition of the policy, which requires “all persons sustaining loss or damage by fire, forthwith to give notice thereof to the secretary, and within thirty days after the loss to deliver a particular account of such loss or damage, signed with their own hands, and verified by oath or affirmation,” &c. This condition imposes two duties; the latter was complied with, but the former was not, and consequently, the plaintiff was not entitled to recover, according to the decision in Woodfin v. Asheville Insurance Company, 6 Jones’ Rep. 558.

The first, or general notice is required to be given “forthwith.,” to enable the company, as soon after the loss as practicable, to institute proper enquiry; and the second, or particular notice, within thirty days. It was not proven that any notice was given until after the expiration of some twenty lays. This, certainly does not satisfy the word “forthwith,” which must be construed, considering the purpose for which it is required, to mean immediately, or within reasonable time; and, under the circumstances, the rule which has been adopted in regard to bills of exchange, i. e. on the same day, if in the same town, or else by the next mail, would seem to furnish a fit analogy. As this point is decisive, we will not enter upon the other, especially as the statement, made up by his Honor, and his charge in reference to it, are not so clearly set out as to enable us to see, that we understand it. There is error. Venire de novo.

Per Curiam,

Judgment reversed»,