Johnson v. Aetna Ins. Co. of Hartford, Conn.

• Decision Date: 01 October 1931
• Docket Number: 112.
• Citation: 160 S.E. 454,201 N.C. 362
• Parties: JOHNSON v. ÆTNA INS. CO. OF HARTFORD, CONN.
• Court: North Carolina Supreme Court

160 S.E. 454

201 N.C. 362

JOHNSON v. ÆTNA INS. CO. OF HARTFORD, CONN.

No. 112.

Supreme Court of North Carolina

October 1, 1931

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

Action by Leonard Johnson against the Ætna Insurance Company of Hartford, Connecticut. From a judgment dismissing the action plaintiff appeals.

Affirmed.

This is an action to recover on two policies of fire insurance issued by the defendant to the plaintiff, one dated May 31, 1926 and the other dated August 20, 1926. Each policy expired according to its terms, at the end of three years from its date.

On January 19, 1929, before the expiration of either of said policies, the property covered by both policies was destroyed or damaged by fire, causing the plaintiff loss or damage in a sum more than the amount of said policies.

Defendant denied liability for the loss or damage sustained by plaintiff, because of violations by plaintiff after the issuance of said policies of certain stipulations and provisions contained therein. Both policies were in the standard form prescribed by statute. C. S. § 6437.

At the close of the evidence for the plaintiff, defendant moved for judgment as of nonsuit, C. S. § 567. The motion was allowed and plaintiff excepted.

From judgment dismissing the action, plaintiff appealed to the Supreme Court.

Parker & Lee, of Smithfield, for appellant.

Smith & Joyner, of Raleigh, for appellee.

CONNOR J.

Both policies of insurance sued on in this action contain the following stipulations and provisions as required by statute, C. S. § 6437:

"Unless otherwise provided by agreement in writing added hereto this Company shall not be liable for loss or damage occurring:

"Other insurance,--(a) while the insured has any other contract of insurance, whether valid or not, on property covered in whole or in part by this policy; or

"Increase of hazard,--(b) while the hazard is increased by any means within the control or knowledge of the insured; or

"Unoccupancy,--(f) while the described building whether intended for occupancy by owner or tenant, is vacant or unoccupied beyond a period of ten days."

Both policies also contain the following stipulation and agreement, which is also required by the statute, C. S. § 6437: "Waiver. No one shall have power to waive any provision or condition of this policy, except such as by the terms of this policy may be the subject of agreement added thereto, nor shall any such provision or condition be held to be waived unless such waiver shall be in writing added hereto, nor shall any provision or condition of this policy, or any forfeiture be held to be waived by any requirement, act or proceeding on the part of this Company relative to appraisal or to any examination herein provided for; nor shall any privilege or permission affecting the insurance hereunder exist or be claimed by the insured unless granted herein, or by rider added hereto."

There were other stipulations and provisions in both said policies as required by the statute. Only those above set out, however, are pertinent to the question presented by this appeal. These stipulations and provisions are included in the policies by virtue of statutory requirements, and are valid in all respects. Midkiff v. Ins. Co., 197 N.C. 139, 147 S.E. 812; Greene v. Ins. Co., 196 N.C. 335, 145 S.E. 616; Federal Land Bank v. Ins. Co., 187 N.C. 97, 121 S.E. 37; Black v. Ins. Co., 148 N.C. 169, 61 S.E. 672, 21 L. R. A. (N. S.) 578. In the last-cited case, referring to the stipulations and provisions included in a policy of fire insurance, as required by C. S. § 6437, it is said: "They are inserted in the policy, not by the company or by the plaintiff, but by the statute. To fail to give them force and effect is to nullify the statute." These stipulations and provisions are included in the policies, and unless waived as provided therein, must and will be enforced. In Sugg v. Ins. Co., 98 N.C. 143, 3 S.E. 732, 733, it is said: "The contract of insurance embodied and set forth in the policy sued upon must receive a reasonable and just interpretation; and the intention of the parties to it, thus ascertained, must prevail. Contracts of this character, although in some respects peculiar, are governed by the same principles that govern other contracts, and are not different from others as to the rules of interpretation applicable in varying aspects of them. The purpose of courts in construing them is to ascertain what the parties mean and intend; what they have respectively agreed to do or not to do; how they have agreed to be affected, to be bound or not to be bound. It is not the province of the court to amend, modify, or make a contract for the parties; or to reform their contract so as to render it reasonable, expedient, and just, or, in the absence of fraud, accident, or mutual mistake, to relieve them from misadventure,...