John Tatham & Co. v. Liverpool, London & Globe Ins. Co.
| Decision Date | 03 June 1921 |
| Docket Number | 591. |
| Citation | 107 S.E. 450,181 N.C. 434 |
| Parties | JOHN TATHAM & CO. v. LIVERPOOL, LONDON & GLOBE INS. CO. |
| Court | North Carolina Supreme Court |
Appeal from Superior Court, Haywood County; Long, Judge.
Action by John Tatham & Company against the Liverpool, London & Globe Insurance Company. From a judgment of nonsuit plaintiffs appeal. Affirmed.
Civil action to recover upon two contracts of insurance. They were written by the defendant to cover a certain lot of lumber belonging to the plaintiffs, and which was destroyed by fire while said contracts were in force. The policies were issued on January 18, 1918, and April 12, 1918, respectively, and they contain the regular standard provisions and stipulations as authorized and set out in chapter 109, Public Laws of 1915. The loss occurred June 1, 1918, and this suit was instituted October 25, 1919. From a judgment of nonsuit, the plaintiffs appealed.
Where an insured failed to commence suit on a policy within the time fixed thereby, his delay was not excused by the company's conduct in agreeing to an appraisal and award of damages or other acts of the company contemplated by the terms of the contract.
Felix E. Alley, of Waynesville, and Merrimon, Adams & Johnston, of Asheville, for appellants.
Tillett & Guthrie, of Charlotte, for appellee.
The two policies in suit were issued under authority of chapter 109 Public Laws of 1915. Each contained, among other provisions the following stipulation, which was expressly prescribed and sanctioned by the statute law of the state then in force:
"No suit or action on this policy, for the recovery of any claim, shall be sustainable in any court of law or equity unless the insured shall have complied with all the requirements of this policy, nor unless commenced within twelve months next after the fire."
The loss occurred on the 1st day of June, 1918, and suit was commenced October 25, 1919, nearly 17 months thereafter. This was not in keeping with the terms of the policies as above set out. These contractual limitations and other substantially similar provisions have been upheld in a number of decisions. Holly v. Assurance Co., 170 N.C. 4, 86 S.E. 694; Muse v. Assurance Co., 108 N.C. 240, 13 S.E. 94; Lowe v. Accident Ass'n, 115 N.C. 18, 20 S.E. 169; Harvey v. Fidelity & Casualty Co., 200 F 925, 119 C. C. A. 221; Modlin v. Ins. Co., 151 N.C. 35, 65 S.E. 605; Gerringer v. Ins. Co., 133 N.C. 414, 45 S.E....
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