55 S.E. 717 | N.C. | 1906
This action was brought to recover the sum of $1,500 alleged to be due on a fire insurance policy, issued 8 November, 1901, by the defendant to the plaintiff, on a stock of goods, which were destroyed by fire 18 November, 1901. The summons was issued 14 May, 1904, and served on Avery Ervin, local agents of the defendant company at Morganton. The defendant entered a special appearance and moved to dismiss the action because the summons had not been properly served and the defendant was not therefore before the Court. This motion was based on the ground that the defendant is a foreign corporation, and the summons should therefore have been served on the State Insurance Commissioner as required by Laws 1903, ch. 438, sec. 6 (Revisal, sec. 4750), where such a company has been licensed to do business in this State. The Court overruled the motion, but without finding any facts. Defendant excepted to the ruling. *270
The defendant denied its liability on the policy, upon these several grounds:
1. That no proofs of loss had been filed, the policy providing that the loss shall not be payable until sixty days after such proofs have been received.
2. That the plaintiff had not complied with the provisions of the iron-safe clause contained in the policy, by making an inventory of the stock of goods, and keeping a set of books showing a complete record (341) of the business and by preserving the inventory and books securely locked in a fire-proof safe. The policy requires the inventory to be taken within thirty days after the date of the policy, unless one had already been made within the twelve months prior thereto, and directs that the books shall show the condition of the business from the date of the inventory.
3. That this action was brought on 7 May, 1904, nearly two years and a half after the fire, which occurred on 18 November, 1901, whereas the policy requires that any action thereon shall be commenced within twelve months next after the fire. A suit for the same cause of action was brought 26 February, 1902, in which it appears, at least inferentially, that a nonsuit was taken and this action was brought within six months afterwards.
There was evidence tending to show that proofs of loss were filed with the company's agent in January or February, 1902, and that $20 had been paid to the agent, it being the balance due on the premium, and also evidence as to the loss and the value of the goods which had been destroyed by the fire. The jury returned a verdict for the plaintiff, and from the judgment thereon the defendant appealed.
The motion to dismiss the action was properly denied. The Revisal, sec. 4750, does require service of legal process upon any foreign insurance company, licensed to do business in this State, to be made by leaving the same with the Insurance Commissioner, and it provides that in such a case no other service shall be valid. But it does not appear affirmatively in this case that the defendant is a licensed company. In the absence of any statement of the facts by the presiding Judge, we must assume that he found such (342) facts as would sustain his ruling. Whitehead v. Hale,
The defendant having denied its liability to the plaintiff on the policy by alleging that there was a violation of the iron-safe clause, whereby the policy became null and void, it cannot now successfully plead the failure of the plaintiff to file proofs of loss and defeat his recovery. It cannot blow hot and cold, so to speak, at one and the same time. When it insists that proofs should have been filed, it asserts, of course, the validity of the policy; for why file proofs of loss under a void policy? There can be no loss under such a policy. This defense, (343) therefore, is inconsistent with that of noncompliance with the iron-safe clause, which implies that the policy is invalid. The one necessarily excludes the other, and in the sense that an election must be made between them. This is a most just and reasonable rule, and we have held, in accordance with it, that a denial of liability by a fire insurance company dispenses with the necessity of filing proofs of loss. Gerringerv. Ins. Co.,
The defendant is not any more fortunate in its next defense. It appears that the policy was issued on 8 November, 1901, and the fire occurred on 18 November, 1901, within the thirty days after the policy was issued. The iron-safe clause allows thirty days for making the inventory, and the books are not required to be opened until the *272
inventory is completed, for the record of the business, as shown by the books, must date from the completion of the inventory, or from the expiration of the thirty days allowed in making it. So the full time for doing neither one of these acts had elapsed when the fire occurred. We have decided in a case having all the essential features of this one, so far as this defense is concerned, that in such circumstances the defendant cannot set up any breach of the stipulations in the iron-safe clause, because there has been no such breach and could not have been any. Bray v. Ins.Co.,
The remaining position of the defendant is equally untenable. This action was commenced within six months after the discontinuance of the former action upon the same policy, even if it had been discontinued, (344) which does not appear very clearly in the record. The Revisal, sec. 4809, provides that no insurance company shall limit the time within which an action may be commenced to less than one year after the accrual of the cause of action, or to less than six months from the time a nonsuit is taken in an action brought upon the policy within the time originally prescribed. Such a stipulation in the policy is a contractual limitation, and has been held by this Court to be valid when it does not conflict with any provision of the statute.Dibbrell v. Ins. Co.,
The defenses set up in this case are of an extremely technical character. They were sufficient, indeed, if they had been supported by the necessary proof, and the defendant, for it own protection, had a perfect right to plead them. But we will not make any inferences in its favor in order to supply defects in the evidence. So far as the merits of the defenses are concerned, it seems that there was some evidence (345) for the jury upon the question of waiver, which his Honor *273
submitted to them, and they have found against the defendant. But however this may be, it does appear that the plaintiff has paid the consideration for the insurance and has sustained a loss, and that he has substantially complied with the terms and conditions of the policy. When this is shown, and there has been good faith on the part of the insured, there is no reason why the law should require anything more. Willis v. Ins. Co.,
No Error.
Cited: Coggins v. Ins. Co.,
(346)