Faulk v. Circle

• Decision Date: 05 April 1916
• Docket Number: (No. 294.)
• Citation: 88 S.E. 431
• Court: North Carolina Supreme Court
• Parties: FAULK et al. v. FRATERNAL MYSTIC CIRCLE et al.

88 S.E. 431

FAULK et al.

v.FRATERNAL MYSTIC CIRCLE et al.

(No. 294.)

Supreme Court of North Carolina.

April 5, 1916.

Appeal from Superior Court, Robeson County; Whedbee, Judge.

Action by O. C. Faulk and another against the Fraternal Mystic Circle and another. From the judgment, both parties appeal. Defendant's appeal dismissed, and in plaintiff's appeal, no error.

McLean & McKinnon, of Maxton, for plaintiffs.

A. C. Davis, of Goldsboro, and McLean, Varser & McLean, of Lumberton, for defendants.

CLARK, C. J. [1] The plaintiff held a benefit certificate from the defendant "Mystic Circle." The only question presented by the plaintiff's appeal is the validity of section 5 in the constitution and by-laws of the defendant company:

"No action at law, or in equity, in any court shall be brought or maintained on any cause or claim arising out of the membership or benefit certificate, unless such action is brought within one year from the time when such right of action accrues."

It was admitted that this provision was in force for more than one year prior to the beginning of this action, and that the plaintiff's cause of action, if he has any, accrued more than 12 months prior to the beginning of this action.

In Heilig v. Insurance Co., 152 N. C. 358, 67 S. E. 927, 20 Ann. Cas. 1290, this provision was held valid, the court holding that a stipulation in insurance policies limiting the time in which actions to recover for loss covered by the policy can be begun is not contrary to Revisal, § 4809, if the time limited is not less than one year, as provided in that section. That decision cites many cases in this court upholding such stipulation. Among our own authorities to this effect, as cited in the above case, are Modlin v. Insurance Co., 151 N. C. 35, 65 S. E. 605; Parker v. Insurance Co., 143 N. C 339, 55 S. E. 717; Gerringer v. Insurance Co., 133 N. C. 407, 45 S. E. 773; Lowe v. Insurance Co., 115 N. O. 18, 20 S. E. 169; Muse v. Assurance Co., 108 N. C. 240, 13 S. E. 94. In Vance on Insurance, § 191, are citations in the notes to a large number of cases in other states to the same effect.

The cases cited by the defendant do not contravene this ruling. Bragaw v. Lodge, 128 N. C. 354, 38 S. E. 905, 54 L. R. A. 602, presented an entirely different proposition. In Makeley v. Legion of Honor, 133 N. C. 267, 45 S. E. 649, the defendant attempted to reduce the amount of indemnity, and Johnson v. Reformers, 135 N. C. 385, 47 S. E. 463, was to the same purport.

The plaintiff contends that the provision limiting the time to one year within which the action can be brought is invalid because it was not in the constitution and by-laws of the American Guild when he took out his benefit certificate in 1897, and that it was not in the constitution and by-laws of the Mystic Circle May 27, 1907, when he accepted this benefit certificate from it in lieu of the certificate of the American Guild. But in the constitution and...