Heilig v. . Insurance Company

Manning, J. The stipulation in policies of insurance, limiting tbe time in wbicb actions to recover the loss covered by tbe *360 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; Parker v. Insurance Co., 143 N. C., 339; Muse v. Assurance Co., 108 N. C., 240; Lowe v. Acc. Assur., 115 N. C., 18; Dibbrell v. Insurance Co., 110 N. C., 193; Gerringer v. Insurance Co., 133 N. C., 407; Vance on Insurance, sec. 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, Rev., for the fair and equitable construction of the stipulation is to give the plaintiff twelve months or one year after his right of action accrued, in which to bring his action. Modlin's case, supra; Clement’s Eire Insurance as a Valid Contract, pp. 390 and 391, and cases cited; 4 Joyce on Insurance, sec. 3188; Miller v. Hartford Fire Insurance Co., 70 Iowa, 704; 25 Cyc., 911; 19 Cyc., 907. The only provision of the policy, relating to the point now under consideration, set out in the record, is the stipulation quoted in the statement of the case. The policy itself is not sent up. Assuming that the policy allows sixty days in which proofs of injury are to be filed, it stipulates that the company shall have ninety days to determine its action upon them, and the insured, under the construction we place upon the stipulation, would have one year thereafter in which to bring his action. This was not done. The first action was not brought until'28 January, 1904, the accident occurring 12 July, 1902; this was more than eighteen months thereafter. The stipulated time limit was seventeen months, by a construction most favorable to the insured. The action, therefore, would be defeated by the delay unless saved by the infancy of the plaintiff. In Vance on Insurance, p. 508, the doctrine is thus stated: “The fact that the insured is an infant does not relieve him of the obligation to bring his suit within the twelve months stipulated, and a suit brought by him after reaching majority is held to be barred.” Mead v. Insurance Co. (Kan.), 64 L. R. A., 79; 75 Pac., 475; Suggs v. Insurance Co. (Tex.), 1 L. R. A., 847. The principle upon which this doctrine rests is that a suit upon thé contract of insurance, to recover the benefits due under it, is an affirmance or ratification of the contract, and its stipulations are therefore binding; but if the infant, upon attaining his majority, should elect to disaffirm, his action would be to recover the premiums or assessments paid by him during his minority, and not an action upon the contract to recover its benefits. This follows from the well-settled principle that the contracts of infants, except for necessaries and those not mala prohibita or *361 mala in se, are voidable. Upon ratification or affirmance, tbe contract stands cum onere, not ex onere. Our. conclusion, therefore, is that there was no error in his Honor’s ruling, and the judgment is Affirmed.