#### LURIN HEILIG v. ÆTNA LIFE INSURANCE COMPANY.

(Filed 20 April, 1910.)

1. Insurance, Accident — Stipulation—Suit In Year.

The stipulation in policies of accident insurance, limiting the time in which actions to recover the loss covered by the policies can be begun, is valid and binding, and not in contravention of Revisal, sec. 4809, being construed to give plaintiff one year after his cause of action accrued, or seventeen months, at most, from ■ the time of injury, within which to bring his action. .

2. Same — Infancy—Action on Policy — Ratification.

An action brought by one after reaching his majority to recover benefits under an accident policy of insurance, taken out by him during his minority, is an affirmance or ratification of the contract; and the stipulation of the policy requiring that suit thereon Shall be brought in one year is binding upon him. Should he elect to disaffirm his contract, his action would be to recover the premiums or assessments paid by him during'his minority.

*359Appeal from Long, J., at August Term, 1909, of Rowan.-

Tbe plaintiff sued to recover upon an accident policy issued to him by tbe defendant on 21 March, 1902, tbe amount stipulated to be paid for tbe accidental loss of a foot. Tbe accident resulting in tbe injury to plaintiff occurred on 12 July, 1902. Action was begun by plaintiff on 28 January, 1904, wbicb was dismissed at August Term, 1906, of tbe Superior Court, for failure of plaintiff to comply witb tbe terms imposed upon bim for a continuance granted at a previous term. Tbe present action was begun 29 April, 1907.

Tbe policy sued upon contained tbe following stipulation: “No legal proceedings shall be brought to recover any sum hereby insured, within ninety days after receipt of proofs at Hartford, nor at all, unless commenced within one year from tbe ,date of tbe alleged accident, as to death, loss of limb, or sight, within six months from tbe filing of said claim witb tbe company as to total disability,” Tbe plaintiff became of age between tbe time of injury and tbe bringing of tbe first action. Tbe failure to bring the action within tbe stipulated time was, among other things, pleaded as a defense to tbe action by tbe defendant. Tbe following issues were submitted by bis Honor:

1. Were tbe plaintiff’s injuries caused by tbe unnecessary exposure of tbe plaintiff to obvious danger or obvious risk? Answer: No.

2. Did tbe plaintiff commence bis action within a year from tbe time of tbe accident wbicb caused tbe injury? Answer: No.

3. What sum, if any, is plaintiff entitled to recover? Answer: $266.66, witb interest from tbe time due under tbe policy.

Tbe judgment rendered by bis Honor contains the following: “Tbe court, pending tbe trial, reserved tbe question of law as to whether or not tbe plaintiff could recover, and upon tbe consideration of all tbe facts, tbe court is of tbe opinion that tbe plaintiff, in affirming tbe contract, wbicb appears to be a single one, cannot affirm in part and disaffirm in part, and in view of the language of tbe policy quoted, is of tbe opinion that, upon the whole record, tbe plaiptiff cannot recover. Tbe court thereupon enters a judgment of nonsuit.” Tbe plaintiff excepted and appealed to this Court.

George W. Garland for plaintiff.

John L. Rendlemen and Jerome, Maness & Sikes for defendant.

Manning, J.

The stipulation in policies of insurance, limiting tbe time in wbicb actions to recover the loss covered by tbe *360policies 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.