Gaskins v. Hartford Fire Insurance Company

131 S.E.2d 872 (1963) 260 N.C. 122 J. Claude GASKINS, t/a Greenville Feed Mills v. HARTFORD FIRE INSURANCE COMPANY. No. 93. Supreme Court of North Carolina. July 19, 1963. *873 J. W. H. Roberts by Eugene A. Smith, Associate, Greenville, for defendant-appellant. David E. Reid, Jr., Greenville, for plaintiff-appellee. SHARP, Justice. While the complaint filed in this action was in general terms and some facts left to inference, it nevertheless stated an enforceable cause of action. At worst, it could only have been a defective statement of a goood cause. Defendant's proper remedy was by a motion to make the complaint more definite. In demurring, counsel for defendant followed the practice mentioned by Barnhill, C. J., in Davis v. Rhodes, 231 N.C. 71, 56 S.E.2d 43. "When, as is often the case, counsel resort to a demurrer rather than a motion to make more definite, to challenge the sufficiency of the statement of a good cause of action and the defect may be cured by amendment, the courts will allow the amendment rather than dismiss the action." However, in this case, the judge, by consent, sustained the demurrer "for the reasons set out in the demurrer." His judgment, even though the complaint was not demurrable, became the law of the case. Nothing else appearing, the new complaint having been filed more than twelve months "after the inception of the loss" the action would be barred for failure to comply with G.S. § 58-176. Holly v. London Assurance Co., 170 N.C. 4, 86 S.E. 694; Rouse v. Old Colony Insurance Co., 203 N.C. 345, 166 S.E. 177; Boyd v. Bankers *874 & Shippers Insurance Co., 245 N.C. 503, 96 S.E.2d 703; Webb v. Eggleston, 228 N.C. 574, 46 S.E.2d 700; Davis v. Rhodes, supra; Stamey v. Rutherfordton Electric Membership Corporation, 249 N.C. 90, 105 S.E.2d 282. The Court will take judicial notice of the filing date of the amended complaint; it judicially knows its own records in the suit being tried. Harrell v. Hilton Lumber Co., 172 N.C. 827, 90 S.E. 148; Webb v. Eggleston, supra; Massenburg v. Fogg, 256 N.C. 703, 124 S.E.2d 868. In this case we think something else appears. At the time counsel for both defendant and plaintiff consented that the demurrer be sustained, the twelve months had already expired and, unless the complaint could have been amended so that the amendment related back, counsel for plaintiff would have been giving away his client's law suit. This, of course, he had no right to do, and we presume that he no more intended to give away his law suit than counsel for defendant thought he did. It is implicit in his Honor's judgment, and the somewhat unusual procedure, that counsel's consent that the demurrer be sustained was intended merely as a device to make the original complaint more definite and certain. This was the only relief to which defendant was then entitled, and the consent of both counsel that the demurrer be sustained implied their consent to the amendment. Permission to amend was included in the order sustaining the demurrer without objection by defendant. A provision in a standard fire insurance policy that action on it must be commenced within twelve months after inception of the loss is contractual. It is, therefore, subject to waiver or estoppel. Strong's N.C. Index, Vol. 2, Insurance, § 87; Dibbrell v. Georgia Home Insurance Co., 110 N.C. 193, 14 S.E. 783; Meekins v. Aetna Insurance Co., 231 N.C. 452, 57 S.E. 2d 777; Boyd v. Bankers & Shippers Insurance Co., supra. Affirmed. PARKER, Justice (concurring in the result). I concur only in the result affirming the judgment below overruling the demurrer to the amended complaint on the ground that the cause of action stated in the amended complaint has not been brought within twelve months of the loss as required by the provision of the policy, which policy, it is stipulated, is a Standard Fire Insurance Policy as set forth in G.S. § 58-176, for the simple reason that the objection that the action stated in the amended complaint was not commenced within the time limited by the provision of the policy cannot be taken advantage of by demurrer, but can only be taken by answer. G.S. § 1-15; Stamey v. Rutherfordton Electric Membership Corp., 249 N.C. 90, 105 S.E.2d 282; Lewis v Shaver, 236 N.C. 510, 73 S.E.2d 320. Defendant is not required to plead this provision of its policy as a bar to plaintiff's action alleged in his amended complaint, nor is any person required to plead as a defense to an action the bar of the Statute of Limitations. However, if defendant does plead it as a defense, defendant will be entitled to a peremptory instruction in its favor that plaintiff's action as stated in his amended complaint will be barred by this provision of the policy limiting the time in which action can be brought, unless plaintiff alleges a waiver by defendant of this provision of the policy, or an estoppel of defendant to rely upon it, or both, and introduces evidence in support of such allegations, because no facts constituting a waiver or an estoppel appear in the amended complaint. Miller v. New Amsterdam Casualty Co., 245 N.C. 526, 96 S.E.2d 860. In Wright v. Mercury Insurance Co., 244 N.C. 361, 93 S.E.2d 438, the Court said: "The rule is well settled in this jurisdiction, and it seems to be the majority rule elsewhere, that, if the insured relies upon a waiver or an estoppel in pais or an equitable estoppel affecting the real and substantial merits of the matter in controversy and has an opportunity *875 to plead it, and the facts constituting a waiver or estoppel do not appear in the pleadings of the parties, he must specially plead it, and if he does not do so, evidence to prove it is not admissible over objection." (Citing numerous authority.)