August Term, 1859.
Where, by a policy of insurance, the life of a slave was insured for five years absolutely, without requiring the payment of the annual instalment, as a condition of the defendant's liability, it was Held that the insurance money, for a loss, was not forfeited by a failure to pay such instalment.
Where a party became a member of a mutual insurance company by taking out a policy, it was Held that 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 was Held that 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.
ACTION of ASSUMPSIT, tried before BAILEY, J., at the Special Term, July, 1859, of Buncombe Superior Court.
N.W. Woodfin, for the plaintiff.
Merriman, for the defendant.
The plaintiff declared upon a policy of insurance upon the life of a slave, named ____ , which it was proved was dead. The main point of controversy below was, whether, as the plaintiff did not pay his annual instalment, as required by the charter and by-laws of the company, he had forfeited his right to recover the insurance money. The plaintiff, in reply, insisted that he had no notice that the instalment was due, or about to fall due. It was proved that it was the custom of the company to notify persons by a written notice, dropped into the post office, shortly before an instalment became due, and it was proved by their secretary that he did, in fact, notify the plaintiff in that way, but whether he ever received the notice he could not say. The insurance was for five years, and the requirement as to the payment of instalments, is not inserted as a condition, on which the insurance is to continue.
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 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 part 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 a mutual insurance 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.