Lumber Mut. Cas. Ins. Co. of N. Y. v. Wells

• Decision Date: 09 October 1946
• Docket Number: 236
• Citation: 39 S.E.2d 741,226 N.C. 574
• Parties: LUMBER MUT. CASUALTY INS. CO. OF NEW YORK v. WELLS et al.
• Court: North Carolina Supreme Court

39 S.E.2d 741

226 N.C. 574

LUMBER MUT. CASUALTY INS. CO. OF NEW YORK v. WELLS et al.

No. 236

Supreme Court of North Carolina

October 9, 1946

Proceeding for declaratory judgment to determine rights of parties under policy of liability insurance.

Following remand of the case at the Fall Term, 1945, reported in 225 N.C. 547, 35 S.E.2d 631, these issues were submitted to and answered by the jury:

'1. At the time of the collision referred to in the pleadings was the automobile described in said policy being used as a public or livery conveyance within the meaning of said policy? Answer: Yes.

'2. At the time said policy of insurance was issued by M. B Andrews, Agent, and delivered to the defendant Wells, did the said M. B. Andrews have full knowledge of the fact that the automobile in question was to be used for transportation of passengers for hire to and from Seymour Johnson Field, as alleged in the answer? Answer: Yes.'

Judgment on the verdict for plaintiff (the court disregarding the second issue as inappropriate since it runs counter to the terms of the policy and demand for reformation not being pressed) from which the defendants appeal, assigning errors.

Langston Allen & Taylor, of Goldsboro, and A. J. Fletcher and F T. Dupree, Jr., both of Raleigh, for plaintiff-appellee

Rivers D. Johnson, of Warsaw, for defendant-appellant, Wells.

J. Faison Thomson, of Goldsboro, and J. T. Flythe of Mount Olive, for other defendants-appellants.

STACY Chief Justice.

Perhaps it should be noted that the original policy, which was before the court when the issues were submitted to the jury, has no rider attached to it, as was indicated on the former appeal. Nor do the words, 'passenger type', appear on the face of the policy. This, however, is not material to the case.

It is provided in the contract of insurance that notice to any agent or other person 'shall not affect a waiver or a change' in any part of the contract or 'estop the company from asserting any right' under the terms of the instrument, unless endorsed thereon so as to form a part thereof; and further 'that this policy embodies all agreements existing between himself (the insured) and the company or any of its agents relating to this insurance'.

In the face of these provisions, and the abandonment of the prayer for reformation, the trial court was justified in disregarding the second issue as it runs counter to the written stipulations of the policy, and the defendants are declaring on the policy as written. Its submission to the jury...