Industrial Bank of Elizabeth City v. Resolute Fire Ins. Co. of Providence, R. I.

• Decision Date: 22 September 1943
• Docket Number: 25.
• Citation: 26 S.E.2d 862,223 N.C. 390
• Parties: INDUSTRIAL BANK OF ELIZABETH CITY v. RESOLUTE FIRE INS. CO. OF PROVIDENCE, R. I.
• Court: North Carolina Supreme Court

26 S.E.2d 862

223 N.C. 390

INDUSTRIAL BANK OF ELIZABETH CITY v. RESOLUTE FIRE INS. CO. OF PROVIDENCE, R. I.

No. 25.

Supreme Court of North Carolina

September 22, 1943

Civil action to recover on a policy of insurance.

The record discloses that on 6 January, 1941, the defendant issues a policy of insurance on a Plymouth automobile protecting it against fire and lightning, the loss, if any being made payable to the assured, Clarence Griffin, Jr., and the Industrial Bank of Elizabeth City, as its interest may appear. The interest of the Industrial Bank, at the time of the execution of the policy, was that of mortgagee to the extent of $225.40, and at the time of loss this had been reduced to $129.40.

The contract of insurance contains the following pertinent provisions:

1. "This entire policy shall be void if the assured has concealed or misrepresented any material fact or circumstance concerning this insurance or the subject thereof".

2. "Unless otherwise provided by agreement in writing added hereto, and except as to any lien mortgage, or other encumbrance specifically set forth and described in paragraph D of this policy, this company shall not be liable for loss or damage to any property insured hereunder while subject to any lien, mortgage or other encumbrance".

3. "Except as to any lien, mortgage or other encumbrance specifically set forth and described in pargaraph D of this policy, this entire policy shall be void unless otherwise provided by agreement in writing added hereto, if the interest of the assured in the subject of this insurance be or become other than unconditional and sole lawful ownership".

4. "No suit or action on this policy *** shall be sustainable *** unless commenced within twelve (12) months next after the happening of the loss."

The plaintiff's mortgage is specifically set forth and described in paragraph D of the policy.

On 6 January, 1941, another mortgage was given on the Plymouth automobile in question to secure a note of $38 payable to F Webb Williams. This mortgage was registered 14 June, 1941.

It is in evidence that the subject of the insurance was destroyed by fire sometime between June and October, 1941. The plaintiff's action was commenced 29 September, 1942.

From judgment of nonsuit entered at the close of plaintiff's evidence, the plaintiff appeals, assigning errors.

M. B. Simpson, of Elizabeth City, for plaintiff, appellant.

J. Kenyon Wilson, of Elizabeth City, for defendant, appellee.

STACY Chief Justice.

Three questions are to be answered in determining the correctness of the nonsuit.

In the first place, while the plaintiff's mortgage, the...