Heilig v. Aetna Life Ins. Co.

• Decision Date: 20 April 1910
• Citation: 67 S.E. 927,152 N.C. 358
• Parties: HEILIG v. ÆTNA LIFE INS. CO.
• Court: North Carolina Supreme Court

67 S.E. 927

152 N.C. 358

HEILIG v. ÆTNA LIFE INS. CO.

Supreme Court of North Carolina

April 20, 1910

Appeal from Superior Court, Rowan County; Long, Judge.

Action by Lurin Heilig against the Ætna Life Insurance Company. From a judgment for defendant, plaintiff appeals. Affirmed.

Under an accident policy stipulating that an action must be brought within a year after the right of action accrued, infancy does not stop limitations, since, by suing on the contract, the infant affirms it, and therefore is bound by its terms.

The plaintiff sued to recover upon an accident policy issued to him by the defendant on March 21, 1902, the amount stipulated to be paid for the accidental loss of a foot. The accident resulting in the injury to plaintiff, occurred on July 12 1902. Action was begun by plaintiff on January 28, 1904 which was dismissed at August term, 1906, of the superior court, for failure of plaintiff to comply with the terms imposed upon him for a continuance granted at a previous term. The present action was begun April 29, 1907. The policy sued upon contained the following stipulation: "No legal proceedings shall be brought to recover any sum hereby insured, within 90 days after receipt of proofs at Hartford nor at all, unless commenced within one year from the date of the alleged accident, as to death, loss of limb, or sight, within six months from the filing of said claim with the company as to total disability." The plaintiff became of age between the time of injury and the bringing of the first action. The failure to bring the action within the stipulated time was, among other things, pleaded as a defense to the action by the defendant.

The following issues were submitted by his honor:

"(1) Were the plaintiff's injuries caused by the unnecessary exposure of the plaintiff to obvious danger or obvious risk? Ans.: No.

"(2) Did the plaintiff commence his action within a year from the time of the accident which caused the injury? Ans.: No.

"(3) What sum, if any, is plaintiff entitled to recover? Ans.: $266.66, with interest from the time due under the policy."

The judgment rendered by his honor contains the following: "The court, pending the trial, reserved the question of law as to whether or not the plaintiff could recover, and upon the consideration of all the facts the court is of the opinion that the plaintiff, in affirming the contract which appears to be a single one, cannot affirm in part and disaffirm in part, and, in view of the language of the policy quoted above, is of the opinion that, upon the whole record, the plaintiff cannot recover. The court thereupon enters a judgment of nonsuit." The plaintiff excepted and appealed to this court.

Geo. W. Garland, for appellant.

John L. Rendlemen and Jerome, Maness & Sikes, for appellee.

MANNING J.

The stipulation in policies of insurance, limiting the time in which actions to recover the loss covered by the policies can be begun, has been upheld by this court in several cases, and is uniformly sustained by the American courts. Modlin v Insurance Co., 151 N.C. 35, 65 S.E. 605; Parker v. Insurance Co., 143 N.C. 339, 55 S.E. 717; Muse v. Assurance Co., 108 N.C. 240, 13 S.E. 94; Lowe v. Acc. Ass'n, 115 N.C. 18, 20 S.E. 169; Dibbrell v. Insurance Co., 110 N.C. 193, 14 S.E. 783, 28 Am. St. Rep. 678; Gerringer v. Insurance Co., 133 N.C. 407, 45 S.E. 773; Vance on Ins.§ 191, citing in the notes a large number of cases. The stipulation contained in the policy sued upon, does not contravene the provisions of section 4809, Revisal 1905, for the fair and equitable construction of the stipulation...