Opinion · Supreme Court of North Carolina
Woodfin v. Asheville Mutual Insurance
Woodfin v. Asheville Mut. Ins., 51 N.C. 558 (N.C. 1859)
- Type
- Opinion
- Court
- Supreme Court of North Carolina
- Jurisdiction
- North Carolina
- Date
- 1859-08-05
- Topic
- general
Pearsoít, C. J. Upon the point, that the policy was forfeited by reason of a failure, on the part of the plaintiff, to pay the annual instalment, this Court is of opinion with the plaintiff, irrespective of the question of notice. The policy contains no condition, by which it is to be void, if such payment is not made, but insures the life of the slave for five years, absolutely, in this respect — leaving the annual payment of $12,24 to be enforced, not as a condition, but as a part of the consideration. Upon the other point, i. e., the effect of the failure on the *560 part of the plaintiff, to give notice to the secretary of the corns pany of the death of the slave, accompanied by “ a particular account of the circumstances therewith connected, upon oath or affirmation,” as required by the 18th section of the by-laws, this Court is of opinion against the plaintiff.
Citator
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- Cited by
- 8 opinions
Where a party became a member of a mutual insurance company by taking out a policy, it wasHeldthat he thereby assented to, and became bound by, the by-laws then in force, and one of these requiring that a particular account, on oath, of the circumstances of a loss should be given forthwith to the company, it wasHeldthat no action could be sustained for such loss, without furnishing such account within a reasonable time — although this provision was not embodied in the policy.
In the 18th section of the by-laws of the company, (which were in force when the plaintiff took out his policy, and thus became a member,) is the following provision: "All persons insured by this company, having sustained losses by death or fire, shall forthwith give notice to the secretary of the company of such loss, and upon oath or affirmation, shall deliver a particular account of the circumstances therewith connected, together with proper vouchers of the amount of loss or damage sustained." It was admitted by the plaintiff, that he had not given a formal notice, nor stated the circumstances, on oath, connected with the loss, but it is admitted on the other side, that he gave the company informal notice as soon as the loss occurred. One question arising on this state of facts was, whether, without such notice, the suit could be sustained at all. These questions were submitted in the form of a case agreed upon, which his Honor decided against the plaintiff, from which he appealed.
Upon the other point, i.e., the effect of the failure on thePage 560part of the plaintiff, to give notice to the secretary of the company of the death of the slave, accompanied by "a particular account of the circumstances therewith connected, upon oath of affirmation," as required by the 18th section of the by-laws, this Court is of opinion against the plaintiff. It is true, the policy contains no such condition, but as this is amutualinsurance company, the plaintiff, as one of its members, acceptted [accepted] the policy, subject to the provisions expressed in the bylaws, and, in order to maintain an action, it was incumbent on him "forthwith," that is, in a reasonable time, to give the notice, and deliver a particular account, on oath, of the circumstances, as required.
This requisition is not a mere formal matter to enable the company to pay the amount of the insurance without suit, and thereby save cost, but is a matter of substance, in order that the company may, as soon after the loss as practicable, institute all proper enquiries as to the circumstances, so as to guard against fraud by false swearing and other means of imposition. It follows that this requirement must be strictly performed, and that an informal notice, without a statement on oath, will not answer the purpose, or entitle the party to maintain an action.
PER CURIAM, Judgment affirmed.