Fowler v. Old North State Ins. Co.

• Decision Date: 31 January 1876
• Citation: 74 N.C. 89
• Court: North Carolina Supreme Court
• Parties: SAMUEL FOWLER v. OLD NORTH STATE INSURANCE COMPANY.

74 N.C. 89

SAMUEL FOWLER

v.OLD NORTH STATE INSURANCE COMPANY.

Supreme Court of North Carolina.

January Term, 1876.

In case of the destruction by fire of a stock of goods which the defendant had insured for and on account of the plaintiff, the proper measnre of damages against the defendant is the market value of the goods, (within the amount insured,) at the time and place of the fire.

The failure of the plaintiff to call as a witness one who was his clerk at the time of such fire, to prove the value of the goods, was a proper subject of remark by the counsel of the defendant, before the jury. The reasons of the plaintiff for not introducing the clerk, were also properly called to the attention of the jury by his Honor, presiding.

(The case of Wynne v. The Liv. Lond. & Globe Ins. Co., 71 N. C. Rep. 121, cited and approved.)

CIVIL ACTION to recover upon a policy of insurance, tried before Kerr, J., at Fall Term, 1875, of PERSON Superior Court.

The following statement of the case is sent up on appeal to this court, as a part of the record: The action was brought upon a policy of insurance issued by the defendant to the plaintiff to secure him against the loss by fire of a certain stock of goods and merchandise, and in the event that the goods were destroyed by fire, to pay him two-thirds of the value of the goods at the time of destruction.

In the application, the plaintiff had stated the value of the stock at the time he effected the insurance, at $2,800.00 and claimed that the value of the stock was $2,500.00 at the time of the fire. The defendant, on the trial, contended that in stating the value of the stock at the time of the fire, the witnesses should be confined to the prime cost and freight of the goods, and not the value of such goods at the place of business. The objection was overruled by the court, and the defendant excepted.

After his Honor had concluded his charge, he was requested by the counsel for the defendant to charge the jury: That inasmuch as one Elijah Sherman, who was plaintiff's clerk at the time of the fire, was present in court, and, though sworn, had not been called and examined as a witness by plaintiff to prove the value of plaintiff's stock of goods destroyed by fire, that this was a circumstance of suspicion against him; especially as there was much diversity of opinion among the nine witnesses examined as to the value of the goods in plaintiff's store shortly before the fire, varying in their estimates from five hundred dollars as the value of the goods in sight above the counter, to twenty-five hundred dollars as the value of the whole stock; and that the plaintiff thus having it in his power to remove the circumstance of suspicion, if it was unfounded, by examining his clerk, and failing to do so, it was a strong circumstance to show that the goods destroyed...