Lowe v. United States Mut. Acc. Ass'n

• Decision Date: 16 October 1894
• Citation: 115 N.C. 18,20 S.E. 169
• Court: North Carolina Supreme Court
• Parties: LOWE et al. v. UNITED STATES MUT. ACC. ASS'N.

20 S.E. 169

115 N.C. 18

LOWE et al.

v.UNITED STATES MUT. ACC. ASS'N.

Supreme Court of North Carolina.

Oct. 16, 1894.

Appealable Orders—Accident Insurance-Conditions—Term of Suing.

1. An appeal does not lie from a refusal to dismiss, it not being final.

2. A condition in an accident policy that no action thereon shall be brought unless commenced "within a year" from the accidental injury, is not in contravention of Code, § 3076, which forbids any person licensed to do insurance business to limit the term within which suit shall be brought "to a period less than one year."

3. In the absence of a waiver of such condition on the part of the insurer, it is valid as a reasonable agreement.

Appeal from superior court, Chowan county; Armfield, Judge.

Action by William S. Lowe and others against the United States Mutual Accident Association. From a refusal to dismiss, defendant appeals. Appeal dismissed.

J. S. Manning, for appellant.

Pruden & Vann, for appellees.

AVERY, J. It has been repeatedly held by this court that, while an appeal lies from an order dismissing an action, a refusal to dismiss does not "determine the suit or prevent a judgment from which an appeal may be taken, " and is not reviewable in the appellate court without further proceedings in the cause. Plemmons v. Improvement Co., 108 N. C. 614, 13 S. E. 188, and other cases cited in Clark's Code, pp. 559, 560. But as we can see that the ends of justice may be subserved in this particular case by passing upon the main question involved in the controversy, We have concluded that it is proper to do so. The stipulation in the policy which gave rise to the action in Muse v. Assurance Corp., 108 N. C. 240, 13 S. E. 94, was that "no suit or action against this corporation for the recovery of any claim by virtue of this policy shall be sustained, " etc., "unless such suit or action be commenced within twelve months next after the loss shall occur." The condition of the policy sued on is that "no suit or proceeding in law or equity shall be brought or arbitration required, to recover any sum under this policy unless the same is commenced within one year from the time of the alleged accidental injury." In Muse's Case it was held that the word "month" must be construed to mean a calendar month, and therefore that 12 months was the same as one year. It would follow that the stipulation in our case fixes precisely the same limit as was prescribed in Muse's Case, and is not, therefore, an agreement in...