Nelson v. Atlanta Home Ins. Co

• Decision Date: 06 April 1897
• Citation: 27 S.E. 38,120 N.C. 302
• Court: North Carolina Supreme Court
• Parties: NELSON et al. v. ATLANTA HOME INS. CO.

27 S.E. 38

120 N.C. 302

NELSON et al.

v.ATLANTA HOME INS. CO.

Supreme Court of North Carolina.

April 6, 1897.

Insurance—Title—Other Insurance—Disagreement as to Loss—Trial—Instructions.

1. It was not error to instruct, on a special issue whether plaintiff was the owner of certain property, that, if the jury believed the evidence, they should answer in the affirmative, where plaintiff's possession under deeds duly executed and recorded was shown, and there was no evidence impeaching his title.

2. On an issue whether plaintiff had accepted a certain policy issued without his knowledge, so as to violate a provision of the policy in suit against additional insurance, an instruction that defendant contended that plaintiff had "received and accepted" the other policy, and that, if such receipt and acceptance was established, the issue should be found against plaintiff, preceded by a reading of the judge's minutes of the testimony, is sufficiently full and explicit, in the absence of a request for further instructions.

3. One to whom a policy was issued without his knowledge, and who did not intend to accept it when it was issued, cannot accept it after a loss, and therefore the filing of proofs of loss on such a policy is not an acceptance, and does not violate a condition of a previously issued policy against additional insurance.

4. A contention between the parties to a policy as to whether additional insurance had been taken, which would render the policy void, is not a "disagreement as to the amount of the loss, " though, if both policies had been valid, the loss would have been divided; and therefore, where such contention was the only disagreement claimed, lack of fullness in an instruction as to disagreement as to the amount of loss was not error.

Appeal from superior court, Lenoir county; Coble, Judge.

Action by John L. Nelson and S. H. Loftin against the Atlanta Home Insurance Company. Judgment for plaintiffs, and defendant appeals. Affirmed.

The first issue submitted to the jury was: "Was the plaintiff Nelson the owner of the said building destroyed?"

Allen & Dortch, for appellant.

Geo. Rountree, for appellees.

DOUGLAS, J. This was a civil action on a policy of fire insurance issued by the defendant to the plaintiff Nelson as owner, and payable to the plaintiff Loftin as mortgagee, in which was the following condition: "This entire policy, unless otherwise provided by agreement indorsed hereon or added hereto, shall be void if the insured now has, or shall hereafter make or procure, any other contract of insurance, whether valid or not, on property covered in whole or in part by this policy." The defendant alleges that this condition was broken by the issuance to the plaintiff Nelson of a policy of insurance covering the same property by the Western Assurance Company of Toronto, Canada. The plaintiff Nelson maintains that this latter policy was issued without his knowledge or procurement, and was never accepted by him. Nine issues were submitted to the jury without objection, all of which were found for the plaintiffs.

There are three exceptions, all to the charge. The first was to the charge on the first issue, where his honor told the jury that if they believed the evidence they would answer this issue "Yes." We see no error therein. The plaintiffs introduced two deeds covering the land in question to Nelson, who, in his testimony, identified the land. There was no other evidence on this issue, and, as it was direct, full, and uncontradicted, the jury could come to no other possible conclusion if they believed it. Its credibility was left to them, and the charge of his honor amounted practically to telling them what would be the legal effect of the facts if found. Hannon v. Grizzard, 89 N. C. 115; Gaither v. Ferebee, 60 N. C. 310; Chemical Co. v. Johnson, 101 N. C. 223, 7 S. E. 770, 775; Purifoy v. Railroad Co., 108 N. C. 100, 12 S. E. 741. The possession of land under a deed apparently good and sufficient, properly acknowledged and recorded, and unimpeached, is sufficient evidence of title.

The second exception was "to the charge upon the third issue, for that his honor did not present the contentions of the defendant, and did not explain the law arising upon a consideration of the evidence bearing upon this issue." The judge, after reading to the jury his notes of the evidence at the beginning of bis...