McDowell Motor Co. v. New York Underwriters Ins. Co.

Decision Date28 February 1951
Docket NumberNo. 18,18
Citation233 N.C. 251,63 S.E.2d 538
PartiesMcDOWELL MOTOR CO., Inc. v. NEW YORK UNDERWRITERS INS. CO.
CourtNorth Carolina Supreme Court

McMullan & Aydlett, Elizabeth City, for plaintiff.

Wilson & Wilson, Elizabeth City, for defendant.

DENNY, Justice.

The question for determination is whether or not the delivery of the automobile by plaintiff's sales manager to the prospective purchaser, under the above circumstances, was a voluntary parting with the possession thereof within the meaning of the exclusion clause contained in the plaintiff's policy of insurance.

This controversy hinges on the proper interpretation of the exclusion clause with respect to what constitutes a voluntary parting of possession as contemplated by the contracting parties.

The appellant argues that the language used in the exclusion clause is not clear since the word 'possession' has many different meanings in legal terminology, citing National Safe Deposit Co. v. Stead, 232 U.S. 58, 34 S.Ct. 209, 212, 58 L.Ed. 504, where it is said: 'both in common speech and in legal terminology, there is no word more ambiguous in its meaning than possession. It is interchangeably used to describe actual possession and constructive possession which often so shade into one another that it is difficult to say where one ends and the other begins. * * * Custody may be in the servant and possession in the master; or title and right of control may be in one and the property within the protection of the house of another '. It is contended, therefore, that under our general rule when the meaning of language used in a policy of insurance is doubtful, it must be construed in favor of the insured and against the insurer. Williams v. Ornamental Stone Co., 232 N.C. 88, 59 S.E.2d 193; Manning v. Commerce Insurance Co., 227 N.C. 251, 41 S.E.2d 767; Roberts v. American Alliance Insurance Co., 212 N.C. 1, 192 S.E. 873, 113 A.L.R. 310; Mills v. Metropolitan Life Insurance Co., 210 N.C. 439, 187 S.E. 581; Jolley v. Jefferson Standard Life Insurance Co., 199 N.C. 269, 154 S.E. 400; Allgood v. Hartford Fire Insurance Co., 186 N.C. 415, 119 S.E. 561, 30 A.L.R. 652; Underwood v. State Life Insurance Co., 185 N.C. 538, 117 S.E. 790; Crowell v. Maryland Motor Car Insurance Co., 169 N.C. 35, 85 S.E. 37.

Likewise, where a policy of insurance is reasonably susceptible to two constructions, one favorable to the insured, the other to the insurer, the construction favorable to the insured will be adopted since the insurer chose the language contained in the policy. Gould Morris Electric Co. v. Atlantic Fire Insurance Co., 229 N.C. 518, 50 S.E.2d 295; Standard Accident Insurance Co. v. Harrison-Wright Co., 207 N.C. 661, 178 S.E. 235; Underwood v. State Life Insurance Co., supra.

We recognize the soundness of these rules, but the rule is equally well settled that an insurance policy is only a contract and subject to the same rules of interpretation applicable to written contracts generally, and the intention of the parties as gathered from the language used in the policy is the polar star that must guide the courts in the interpretation of such instruments. Kirkley v. Merrimac Mut. Fire Insurance Co., 232 N.C. 292, 59 S.E.2d 629; Gould Morris Electric Co. v. Atlantic Fire Insurance Co., supra; Bailey v. Life Insurance Co., 222 N.C. 716, 24 S.E.2d 614, 166 A.L.R. 826; Stanback v. Winston Mutual Life Insurance Co., 220 N.C. 494, 17 S.E.2d 666; McCain v. Hartford Live Stock Insurance Co., 190 N.C. 549, 130 S.E. 186. In the case of Gould Morris Electric Co. v. Atlantic Fire Insurance Co., supra, Stacy, C. J., in speaking for the Court on this question, said: 'The heart of a contract is the intention of the parties which, is to be ascertained from the expressions used, the subject matter, the end in view, the purpose sought, and the situation of the parties at the time.' [229 N.C. 518, 50 S.E.2d 297.] Therefore, in the interpretation of language contained in an insurance policy, the court may take into consideration the character of the business of the insured and the usual hazards involved therein in ascertaining the intent of the parties.

Insurance contracts will be construed according to the meaning of the terms which the parties have used and unless such terms are ambiguous, they will be interpreted according to their usual, ordinary, and commonly accepted meaning. Bailey v. Life Insurance Co., supra; Stanback v. Winston Mutual Life Insurance Co., supra; Roberts v. American Alliance Insurance Co., supra; Gant v. Provident Life & Accident Insurance Co., 197 N.C. 122, 147 S.E. 740; Powers v. Travelers' Insurance Co., 186 N.C. 336, 119 S.E. 481; Crowell v. Maryland Motor Car Insurance Co., supra; Penn v. Standard Life & Accidental Insurance Co., 158 N.C. 29, 73 S.E. 99, 42 L.R.A.,N.S., 593.

It is conceded that plaintiff's sales manager had the authority to deliver the possession of the automobile in question to the prospective customer for the purpose of testing it or showing it to his wife for her approval or disapproval. And while it appears to be a practice with the plaintiff and some other dealers in the Elizabeth City area to permit prospective purchasers to test drive cars unaccompanied by a salesman or other representative of the owner, there is no evidence to support the view that the defendant was apprised of such practice...

To continue reading

Request your trial
38 cases
  • Popper v. The Hartford Fin. Servs. Grp.
    • United States
    • U.S. District Court — Eastern District of North Carolina
    • April 18, 2023
    ... ... Stat. § 58-63-15(11). See ... Gray v, N.C. Ins. Underwriting Ass'n, 352 N.C ... 61,69-71,529 ... policy.” Nelson v. Hartford Underwriters Ins ... Co., 177 N.C.App. 595, 606, 630 S.E.2d ... McDowell Motor Co. v. N.Y. Underwriters Ins. Co., ... 233 ... ...
  • Liberty Ins. Underwriters v. Guideone Specialty Mut. Ins. Co.
    • United States
    • U.S. District Court — Eastern District of North Carolina
    • August 23, 2022
    ... ... instruments.” McDowell Motor Co. v. N.Y ... Underwriters Ins. Co., 233 N.C. 251,253,63 S.E.2d ... 538,540 ... ...
  • Liberty Ins. Underwriters v. Guideone Specialty Mut. Ins. Co.
    • United States
    • U.S. District Court — Eastern District of North Carolina
    • August 23, 2022
    ... ... instruments.” McDowell Motor Co. v. N.Y ... Underwriters Ins. Co., 233 N.C. 251,253,63 S.E.2d ... 538,540 ... ...
  • Cullen v. Valley Forge Life Ins. Co.
    • United States
    • North Carolina Court of Appeals
    • December 16, 2003
    ...Edwards, 68 N.C.App. 714, 715, 315 S.E.2d 747, 749 (1984). I. Waiver A life insurance policy is a contract. Motor Co. v. Insurance Co., 233 N.C. 251, 253, 63 S.E.2d 538, 540 (1951). As such, the parties entering into the insurance contract may agree upon "its terms, provisions and limitatio......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT