Osmond Barringer Co. v. Standard Fire Ins. Co.

• Decision Date: 21 June 1924
• Docket Number: 458.
• Citation: 123 S.E. 305,188 N.C. 117
• Parties: OSMOND BARRINGER CO. v. STANDARD FIRE INS. CO.
• Court: North Carolina Supreme Court

123 S.E. 305

188 N.C. 117

OSMOND BARRINGER CO. v. STANDARD FIRE INS. CO.

No. 458.

Supreme Court of North Carolina

June 21, 1924

Appeal from Superior Court, Mecklenburg County; Harding, Judge.

Action by the Osmond Barringer Company against the Standard Fire Insurance Company. From a judgment for defendant, plaintiff appeals. New trial.

A condition against alienation refers only to such sale or disposition as causes all the assured's interest in or control over the property to cease.

C. W Tillett, Jr., of Charlotte, for appellant.

John M Robinson, of Charlotte, for appellee.

ADAMS J.

On September 22, 1921, the plaintiff and the defendant entered into a contract of insurance, by the terms of which the defendant insured for the term of one year, to the extent of the actual cash value, not exceeding $2,000, a Peerless automobile owned by the plaintiff, a corporation transacting business in the city of Charlotte. The policy provides for indemnity against all direct loss and damage by fire, arising from any cause whatever, except as therein set out. In the sections of the policy entitled "Hazards Not Covered" appear these clauses:

(1) "This entire policy shall be void, unless otherwise provided by agreement in writing added hereto, * * * if any change, other than by the death of the insured, take place in the interest, title, or possession of the subject of insurance (except change of occupants, without increase of hazard)" (2) "This company shall not be liable for loss or damage caused directly or indirectly * * * by theft."

The first is known as the "nonalienation" clause, and the second as the "theft" clause. The appellee contends that either is sufficient to bar the plaintiff's recovery of damages.

It is insisted that the larceny of the plaintiff's car constituted such a change of possession as exonerated the defendant from liability, and that the question has been determined in Williams v. Insurance Co., 184 N.C 268, 114 S.E. 161. There is a distinction, however, between the policy construed in that case and the policy which is the subject of the present suit. In Williams' Case the action was brought upon an " 'open dealer's' policy of insurance on automobiles held for sale." The holder of the policy was engaged in the business of buying and selling automobiles, and applied for and obtained insurance which was specifically adapted to his business. Considering its several provisions, the court construed the policy as exempting the insurance company from liability when the actual or physical possession of the automobile passed from the insured to another. But the policy in the instant case is the standard fire insurance policy, from which are omitted many of the provisions in the "open dealer's" policy. As every decision should be considered in...