Allgood v. Hartford Fire Ins. Co., Inc.

• Citation: 119 S.E. 561,186 N.C. 415
• Decision Date: 07 November 1923
• Docket Number: 300.
• Parties: ALLGOOD v. HARTFORD FIRE INS. CO., INC.
• Court: North Carolina Supreme Court

119 S.E. 561

186 N.C. 415

ALLGOOD v. HARTFORD FIRE INS. CO., INC.

No. 300.

Supreme Court of North Carolina

November 7, 1923

Appeal from Superior Court, Cumberland County; Sinclair, Judge.

Action by Dr. R. A. Allgood against the Hartford Fire Insurance Company, Inc. From a judgment of nonsuit, plaintiff appeals. Error.

An automobile theft policy, requiring insured to use all diligence and care "in locking the automobile when leaving same unattended" merely required insured, in leaving the automobile unattended, to use such diligence as a man of ordinary prudence would exercise under similar circumstances, and failure to lock did not necessarily defeat recovery.

This was a civil action by plaintiff against the defendant to recover the value of an automobile that was stolen. The plaintiff had a policy of "fire and theft insurance" on the car in the defendant company. The paragraphs of the complaint and answer, necessary for an understanding of the case, are as follows:

Complaint paragraph:

"1. That on the 10th day of February, 1922, the plaintiff was the owner and in possession of a 1922 model, six-cylinder, Buick roadster automobile factory or serial No. 692901, motor No. 737784. That said automobile and equipment at that time was reasonably worth the sum of $1,606.83.

2. That on the said date of February 10, 1922, the plaintiff insured the said automobile with the defendant, through its local agent at Fayetteville, N.C. (the Fayetteville Insurance & Realty Company), for the sum of $1,285, the term of said policy beginning at noon on the 10th day of February, 1922, and ending at noon on the 10th day of February, 1923, said policy insuring said car against fire and theft, and that on said date of February 10, 1922, the defendant issued and delivered to the plaintiff its policy of insurance No. 10070 thereon in the sum of $1,285, which policy is now in possession of the plaintiff and will be produced in court at the trial of this case and is asked to be taken as a part thereof.

3. That said automobile was stolen from the plaintiff on October 30, 1922; that at the time said car was stolen it was parked on the premises of the plaintiff about 20 steps from his house. That plaintiff left said car parked for a very short while, stepped into the house and returned within about ten minutes after leaving said car, and it had been stolen."

Answer paragraph:

"1. That the allegations of paragraph 1 of the complaint are admitted, except the statement in said paragraph 'that said automobile and equipment at that time was reasonably worth the sum of $1,606.83,' and that, as to said allegation, the defendants deny the same.

2. That the allegations of paragraph 2 of the complaint are admitted, and, further answering the said paragraph, the defendant says: That the said policy contained the following stipulation and agreement, to wit: 'In consideration of a reduction of premium, it is warranted by the insured that the automobile insured under this policy will be continuously equipped with a locking devise known as Johnson lock (approved by the Underwriters' Laboratories of the National Board of Fire Underwriters and bearing their label). The insured undertakes, during the currency of this policy, to use all diligence and care in maintaining the efficiency of said locking device and in locking the automobile when leaving same unattended.' That, in consideration of said agreement on the part of the insured, there was a reduction of the premium on said policy, and the insured, as the defendant is informed and believes, did equip the said car with a locking device known as Johnson lock, but that, on the 30th day of October, 1922, the day reported by the plaintiff that the said automobile was stolen, the said plaintiff wrote, under date of November 23, 1922, that his car was left in front of his house, and that upon leaving his car he did not lock the same and the car was unattended, and that at said time due to the failure of the plaintiff to lock the said car when leaving it unattended, in accordance with the stipulation and agreement contained in said policy, and the provisions thereof hereinbefore quoted, said car was stolen, and if the said car had been locked, it being equipped with a locking device, known as the Johnson device, that it could not have been stolen, but would have been safe from theft at said time, or, if the said plaintiff had left the car attended by some person at said time, it would not have been stolen.

3. In answer to the allegations of paragraph 3, the defendant says that it had been informed by the plaintiff that the said automobile was stolen from the plaintiff on October 30, 1922. That, at the time said car was stolen, it was left by the plaintiff in the street about 20 feet from his house. That the said car was left unlocked and unattended, and in consequence thereof the said car was stolen, and, as hereinbefore stated in this answer, if the plaintiff had complied with his undertaking and agreement, as contained in the policy and as hereinbefore quoted, and in view of which he was given a reduction in the premium on the insurance on the said car, the said car would not have been stolen, and, except as herein admitted, the allegations of paragraph 3 are untrue and are denied."

The testimony of Dr. R. A. Allgood was as follows:

"I am the plaintiff in this action. On October 30, 1922, I was the owner of a Buick roadster automobile. Had car insured for $1,295. I purchased car on February 10, 1922, and paid for car and equipment $1,606.83. The car was stolen from me on October 30, 1922. It was on Tuesday night about 7 o'clock. I had been on the hill to make a call, and was due at the Lions Club at 7:30. I came by my house for the purpose of shaving. The back porch light to my house was on. I thought my folks were at home. I went into my back yard. Drove my car into my private driveway, just off the street, which is in the rear of my house. I drove my car up not entirely up beyond or behind the house but just out of McGilvary street. The car was just inside my driveway. The driveway is up an incline. I parked the car about 40 feet from my house. The light from my back porch made it light where the car was. I thought my mother, wife, and the boy that I had employed working around the house were at home. I went in the house and found that no one was at home. I went in the bathroom to shave. I heard some cars pass by the house, but I am positive if this car of mine, from where I left it, if the motor had been started I could have heard it. I heard no car start. I shaved, and immediately after I shaved I came out. I was not gone from the car exceeding 10 minutes. The street runs by the side of my house, is on a hill. My private driveway is on a slant from McGilvary street. It is on a slant and a car will roll from my house to Winslow street, about three blocks away. I was never more than 50 feet from my car, and was not gone exceeding 10 minutes. I reported loss of car to the chief of police or the desk sergeant, also reported loss to Mr. Goudy. When I found the car was gone, I telephoned to the office of Dr. McGougan, with whom I practice, for Dr. McGougan's driver to come after me. I could not find the numbers and called Mr. Goudy to come down, and we found the numbers. Mr. Goudy works for Dr. McGougan and myself. We reported the loss and

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