City of Lexington v. Home Indem. Co.
| Decision Date | 27 February 1935 |
| Docket Number | 671. |
| Citation | 178 S.E. 547,207 N.C. 774 |
| Parties | CITY OF LEXINGTON v. HOME INDEMNITY CO. |
| Court | North Carolina Supreme Court |
Appeal from Superior Court, Davidson County; Clement, Judge.
Action by the City of Lexington against the Home Indemnity Company. From a judgment of nonsuit, plaintiff appeals.
Affirmed.
Request for time, made by party to action, constitutes general appearance and waives lack of service of process.
On or about March 11, 1932, R. L. Green brought suit against the city of Lexington, alleging that on November 18, 1931, while walking along First avenue in said city, on his way to his office, he stepped off the sidewalk to examine some maple trees growing and being about eight feet from the sidewalk. His purpose was to examine these trees to ascertain if there were any borers or bugs thereon. The line of maple trees extended for some distance along the avenue, and there was a space of about eight feet between the trees and the sidewalk on which plaintiff was walking. When plaintiff stepped off the sidewalk into this space to examine the trees, he stepped upon a storm sewer or basin which he alleged was defective causing him to fall and to sustain serious and permanent injuries.
At the time the city had a policy of indemnity issued by the defendant in this action, indemnifying the municipality for damages for bodily injuries. A copy of the summons and complaint in the action was sent to the defendant. Thereafter the attorneys for the Indemnity Company requested the attorney for the plaintiff Green an extension of time "of thirty days to file an answer to the complaint of plaintiff." This extension of time was granted. Thereafter on March 31, 1932, the Indemnity Company notified the city of Lexington that it would not defend the Green suit for the reason that the Indemnity policy did not cover the injury.
The city of Lexington filed an answer in the cause and the case proceeded to trial. At the February term, 1934, a judgment was entered by consent, in which it was decreed that the plaintiff recover judgment against the defendant, city of Lexington, for the sum of $1,000 and the costs of this case etc. The attorneys for both parties assented in writing to the judgment.
Thereafter on March 30, 1934, the city of Lexington instituted the present action against the Indemnity Company to recover $1,000 it had paid by virtue of the judgment, to Green, and also to recover counsel fees paid in defending the Green litigation. The Indemnity Company filed an answer denying liability to the plaintiff upon the following grounds:
1. That no written notice had been given as required by the policy of indemnity.
2. That the policy of indemnity did not cover the injury sustained by Green.
3. The policy provided that no action would lie against the company unless brought within two years after the ascertainment of the loss by agreement of the parties or "by judgment against the assured after a trial of the issues."
The policy was introduced in evidence, and it provides for payment of damages resulting from bodily injuries "by any person or persons not employed by the assured while within or upon the premises described in Special Condition 4 * * * or while otherwise about the work of the assured and caused by reason of and during the progress of business operations described in Special Condition 4." Special condition 4, referred to, is substantially as follows:
(a) "Electric light and power companies-all operations," etc.
(b) "Waterworks-all operations," etc.
(c) "Street cleaning-including drivers' helpers and chauffeurs' helpers."
(d) "Garbage collecting-refuse and ashes," etc.
The evidence tended to show that the catch-basin causing the injury to Green was designed to catch rainwater falling on the street and "to keep big trash from going in." It was cleaned out when trash had accumulated by the street force of the city, and is situated two or three feet from the sidewalk. It was maintained and operated by the city, and the street cleaning and...
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