Crowell v. Md. Motor Car Ins. Co

• Decision Date: 28 April 1915
• Docket Number: (No. 444.)
• Court: North Carolina Supreme Court
• Parties: CROWELL. v. MARYLAND MOTOR CAR INS. CO.

85 S.E. 37

169 N.C. 35

CROWELL.

v.MARYLAND MOTOR CAR INS. CO.

(No. 444.)

Supreme Court of North Carolina.

April 28, 1915.

Appeal from Superior Court, Mecklenburg County; Shaw, Judge.

Action by W. J. Crowell against the Maryland Motor Car Insurance Company. From a judgment for plaintiff, defendant appeals. No error.

The defendant insured the plaintiff's motor car and accessories for $1,000, under a policy which, by its eighth clause, provided as follows:

"The motor car hereby insured will not be rented or used for passenger service of any kind for hire, except by special consent of this company indorsed hereon in writing."

The tenth and eleventh clauses declare that the policy shall be void if there be false representation or concealment in certain particulars set forth, or any fraud or false swearing about any matter relating to the insurance, and shall also be void if the interest of assured in the car be other than the sole and unconditional ownership, or if it be or become incumbered by a chattel mortgage, or if there is any change in the owner's interest or title, other than that caused by his death, whether by legal process or judgment or by his voluntary act, or otherwise. The nineteenth clause provides that: "No suit or action on this policy for the recovery of any claim shall be sustainable in any court of law or equity until after full compliance by the insured with all the foregoing requirements, nor unless commenced within 12 months next after the loss or damage."

In November, 1913, plaintiff was the owner or proprietor of a garage in the city of Charlotte, N. C., and sometimes hired automobiles, and held a license for the purpose. He also kept the car in question in the garage for his own use, and not for renting or to be used in passenger service of any kind for hire, though it had been used just once, before it was burned, to take a man to the railroad station. The car was taken from the garage by Ben Stitt, one of plaintiff's employes, and he carried a party of bird hunters in it to Lincoln county on Thanksgiving day, 1913. It was punctured several times on the return, and finally left at a place on the Howd road, six miles from Charlotte, and Ben Stitt telephoned to another garage for another car to take the party of men to the city. The car came, and the men were carried to the city, and Stitt paid the money he had received from them for this service. The defendant offered in evidence the proof of loss signed by plaintiff, in which he stated that the car had been used for his private purposes, "and some for hire." The court charged the jury that if they found that the car was used only twice, in carrying a man to the station at a former time, and on the occasion when it was burned to carry the hunters to Lincoln county, under the circumstances as testified by the plaintiff, and only twice during a period of a year and a half, it would not be such a renting or using of the car "for passenger service for hire" as is forbidden by section 8 of the policy, and they would answer the issue in respect thereto, "No;" but if, on the contrary, they found it was kept for hire and used for hire, for passenger service, they would answer the issue, "Yes, " as that was a violation of section 8 of the policy of insurance. The jury returned a verdict for the plaintiff; and, from the judgment thereon, the defendant appealed.

Cameron Morrison and J. H. McLain, both of Charlotte, for appellant.

Thad A. Adams and Cansler & Cansler, all of Charlotte, for appellee.

WALKER, J. (after stating the facts as above). We find no material error in the trial of this case, and have concluded, after patient consideration of the facts, that substantial justice has been done, and in accordance with well-settled principles of the law.

A policy of insurance, it may be said generally, should be interpreted by the rules which are applicable to other written contracts, for the purpose of ascertaining and giving effect to the real intention of the parties. We have said that it should be construed strictly against the insurer and favorably to the insured, when there is doubt or ambiguity in its terms, as it is supposed to be prepared by the former.

But however this may be, the object of the contract being to afford an indemnity against loss, it should be so considered as to effectuate this purpose, rather than in a way which will defeat it. It should have, from every point of view, a fair and reasonable construction, unless it be so clearly and unambiguously expressed as not to require construction, when its words will be taken in the plain and ordinary sense. Bray v. Insurance Co., 139 N. C. 390, 51 S. E. 922; Railroad Co. v. Casualty Co., 145 N. C. 116, 58 S. E. 906; 19 Cyc. 655; W. P. Ins. Co. v. Simons, 96 Pa. 520; Rogers v. Ætna Ins. Co., 95 Fed. 103, 35 C. C. A. 396; Insurance Co. v. Kearney, 180 U. S. 132, 21 Sup. Ct. 326, 45 L. Ed....