W. I. Anderson & Co. v. American Mut. Liability Ins. Co., of Boston

• Citation: 188 S.E. 642,211 N.C. 23
• Decision Date: 16 December 1936
• Docket Number: 665.
• Parties: W. I. ANDERSON & CO. v. AMERICAN MUT. LIABILITY INS. CO., OF BOSTON.
• Court: North Carolina Supreme Court

188 S.E. 642

211 N.C. 23

W. I. ANDERSON & CO. v. AMERICAN MUT. LIABILITY INS. CO., OF BOSTON.

No. 665.

Supreme Court of North Carolina

December 16, 1936

Appeal from Superior Court, Guilford County; F. S. Hill, Special Judge.

Action by W. I. Anderson & Company against American Mutual Liability Insurance Company of Boston. From a judgment for defendant plaintiff appeals.

Reversed.

Where automobile accident occurred June 3, 1933, and report was made up on June 5 and signed and sent to liability insurer prior to June 20, 1933, and, immediately upon bringing of action by the other party, notice was given to insurer notice of claims was given within reasonable time.

This action is brought by plaintiff against defendant to recover the sum of $2,323.20 paid by plaintiff for bodily injury damage, on account of an accident, that is alleged to be covered by the liability insurance policy issued by defendant to plaintiff.

The defendant, on October 5, 1932, made, executed, and delivered to plaintiff its automobile liability policy No. AL-148419 in which defendant contracted and agreed, among other things, to pay, within the policy limits applying thereto, each loss by reason of liability imposed upon the plaintiff by law for damages, not only on account of bodily injury or death of a person or persons not therein excepted, but also on account of damages to the property of others, and the resulting loss of use thereof caused by any accident accruing within the policy period by reason of the use, ownership, maintenance, or operation of the motor vehicle or trailer mentioned or referred to in said policy.

The policy became effective at 12:01 a. m. October 5, 1932, and expired October 5, 1933. Advance premium of $770.25 was paid by plaintiff to defendant for the protection under the policy. The premium for public liability was $508.95, property damages $261.30. The policy covered 23 automobiles. One of them was "G. M. C. 2-T truck 1927, Serial No. 50574, Motor No. 1991549." Premium $27.50. It was in evidence that by reason of engine trouble it was necessary to use another engine in connection with the above-described truck. Some time in November, 1932, plaintiff purchased from Charlotte a motor and chassis of a 2-ton G. M. C. truck, Motor No. 1954668, Serial No. T-50379, which was placed in the truck which bore Motor No. 1991549, Serial No. 50574. G. M. C. 2-T truck 1927 was used in plaintiff's business before and after repairing the truck by placing the motor and chassis-substituting the new engine for the old.

A. G. Ellington testified for plaintiff: "I was at the scene of the accident probably 30 minutes or a little more thereafter, and we had no other car in that community on that evening. I saw no other car at the same place at the scene of the collision-no more than passenger cars. The one that collided with this same truck was there; it belonged to Mr. B. E. Brown, and I noticed the damage to the cars and the truck in the highway and the road, and I could tell that the cars had collided. The truck involved in the collision was the one that belonged to us. The body of this car that was involved in the collision was the body of the car referred to in the policy as Engine No. 1991549. The wheels were the same as the one included in the policy. I am not certain about the top. There had been repairs made to the automobile referred to in the policy as the G. M. C. 2-ton Truck bearing Engine No. 1991549. We had some engine trouble and I instructed the mechanic to go to Charlotte and buy parts to overhaul the engine, included in the truck; but, instead, when he got there, he bought a second-hand engine of the same type which he installed. There was no difference in the truck before and after, other than the changes which I have mentioned. That is, the engine and a part of the cab was changed. The portion of the cab that was changed evidently had the serial number on it. * * * I signed the Report of Automobile Accident. It was sent to the Company prior to the 20th day of June, 1923. It was made up by the young lady in the office, under my supervision and I signed it. It is dated June 5th. When I first made out the report the engine Number given as the automobile involved in the accident was 1991549."

The accident which the controversy is over took place on June 3, 1933, about 2 o'clock p. m. The report was made up on June 5th and signed and sent to the defendant prior to June 20, 1933. Actions were brought against plaintiff on September 14, 1935, by parties injured in the collision. Immediately, and before the time for answering, notice was given defendant. The defendant refused to defend. Later the actions were compromised by plaintiff and this action is brought to recover under the policy the amount paid the injured parties.

At the close of plaintiff's evidence, the court below sustained a motion for judgment as in case of nonsuit made by defendant, C.S. 567. The plaintiff excepted, assigned error, and appealed to the Supreme Court.

Frazier & Frazier, of Greensboro, for appellant.

Sapp & Sapp, of Greensboro, for appellee.

CLARKSON Justice.

We cannot sustain the nonsuit as we construe the record. If the car in the collision was G. M. C. 2-T truck 1927, Serial No 50574, Motor No. 1991549, on which plaintiff had liability insurance in defendant company, the matter of identification was for the jury to determine. When the new engine was installed in the truck, the Motor No. 1954668 and Serial No. T-50379, did not change it, as it was the same truck with repairs. Repairing the truck by placing a motor and chassis in it did not make a new car. The number of an automobile is...