Pruitt v. Great Am. Ins. Co., 238

• Citation: 241 N.C. 725,86 S.E.2d 401
• Decision Date: 30 March 1955
• Docket Number: No. 238,238
• Court: United States State Supreme Court of North Carolina
• Parties: Woodrow P. PRUITT v. GREAT AMERICAN INSURANCE COMPANY, New York, and The Wachovia Bank and Trust Company.

Page 401

86 S.E.2d 401

241 N.C. 725

Woodrow P. PRUITT v. GREAT AMERICAN INSURANCE COMPANY, New York, and The Wachovia Bank and Trust Company.

No. 238

Supreme Court of North Carolina.

March 30, 1955

W. H. McElwee, Jr., North Wilkesboro, for plaintiff, appellee.

Trivette, Holshouser & Mitchell, North Wilkesboro, and Joyner & Howison, Raleigh, for defendant, appellant, Great American Ins. Co., New York.

PARKER, Justice.

There are no allegations of fraud or of mutual mistake. Therefore, 'the written policy is conclusively presumed to express the contract it purports to contain. ' Floars v. Aetna Life Insurance Co., 144 N.C. 232, 56 S.E. 915, 916: See also State Distributing Corp. v. Travelers Indemnity Co., 224 N.C. 370, at page 374, 30 S.E.2d 377. Lacking such allegations this suit is upon the Certificate of Insurance as written. Burton v. Life & Casualty Ins. Co., 198 N.C. 498, 152 S.E. 396.

Under an almost identical fact situation the Supreme Court of Alabama in Union Marine & General Ins. Co. v. Holmes, 249 Ala. 294, 31 So.2d 303, 305, held that such provision as to countersigning did not make the contract ambiguous as to the period of coverage. In the Alabama Case the insurance policy contained the following provisions: 'Item 2. Policy period: From February 7, 1943 to February 7, 1944 at 12:01 a. m., standard time, at the address of the insured, as stated herein. * * * In witness whereof, the company has caused this policy to be executed and attested, but this policy shall not be valid unless countersigned on the declaration page by a duly authorized agent of the company * * * Countersigned: February 8, 1943 at Birmingham, Alabama * * *. ' The automobile insured under said policy of insurance was destroyed by collision or upset on 7 February 1944 at 4:45 p. m. The Supreme Court of Alabama said: 'Defendant's primary liability, if liable at all, for the damages claimed must rest upon the commitments expressed in the contract, as limited therein. Great American Ins. Co. v. Dover, 219 Ala. 530, 122 So. 658. Therefore, conceding that the countersigning of the policy was essential to the completed execution thereof, it is clear that the delayed countersigning did not extend the period of liability, the limitation of which was stated in the face of the contract. Nor did it inject into the contract an ambiguity as to the period of the coverage. The counter signature in fact and law merely confirmed said stated limitation and gave retroactive force to the policy as of the time it was executed by the defendant company. ' To 'countersign' is to sign in addition to the signature of another in order to attest the authenticity of the other.' Royal Exchange Assurance of London v. Almon, 202 Ala. 374, 80 So. 456, 458; Hartford Fire Ins. Co. v. King, 106 Ala. 519, 17 So. 707; New York Life Ins. Co. v. Tolbert, 10 Cir., 55 F.2d 10; Mead v. Davidson, 3 Ad. & El. 303, 111 Eng. Reprint 428, 4 L.J.K.B. (N.S.) 193.'

In Dillon v. General Exchange Ins. Corporation, Tex.Civ.App.1933, 60 S.W.2d 331, the facts were these: On 19 March 1931, plaintiff purchased on automobile, and at the same time paid to the seller, Chevrolet Co., for the use and benefit of the defendant Insurance Co. the required premium for one year's protection against loss by fire, theft, etc. In consideration of this premium the Insurance Co. issued the policy sued on. The policy recites on its face that the effective date of same is 19 March 1931 and the expiration date 19 March 1932. The policy also showed on its face, "this policy shall not be valid unless countersigned by the duly authorized agent of the Company at San Antonio, Texas.' ' It was countersigned on 31 March 1931. On the night of 20 March 1932 plaintiff's automobile was destroyed by fire. The Court said: 'Appellant's contention is that regardless of the fact that the policy contained the expressed stipulation that it expired at noon March 19, 1932, it was nevertheless in effect on the night of March 20, 1932, because the policy also contained the stipulation that it was not valid unless countersigned by the duly authorized agent of the company at San Antonio, Tex., and that the policy was actually countersigned on March 31, 1931, that appellant had paid for one year's insurance, that he was therefore entitled to one full year's insurance, and that the policy not having been countersigned until March 31, 1931, should not have expired until March 31, 1932. We do not agree with this contention. The insurance company had a lawful right to make this policy effective from a prior date, regardless of the provision that same was not valid unless countersigned by the agent designated. This stipulation had to do with the authenticity of the policy rather than the time from which it should become effective. The policy did not provide that it was not valid until countersigned, but unless countersigned. Until might be construed as referring to time, but unless does not refer to time. Bankers Lloyds v. Montgomery, Tex.Civ.App., 42 S.W.2d 285; Schwartz v. Northern Life Ins. Co., 9 Cir., 25 F.2d 555; Anderson v. Mutual Life Ins. Co., 164 Cal. 712, 130 P. 726, Ann.Cas. 1914B, 903.'

Under almost identical facts with the present case the Supreme Court of Tennessee held in McKee v. Continental Ins. Co., 191 Tenn. 413, 234 S.W.2d 830, 832, 22 A.L.R.2d 980, that a provision in the Certificate of Insurance that this certificate 'shall not be valid unless countersigned by a duly authorized representative of this company' merely confirmed the contract as stated, so that the period of coverage ran from the date stated in the policy as that of the inception of risk, rather than from the date of countersignature six days later, and insured could not recover for a loss to his automobile which occurred three days after the expiration of the period of coverage as stated in the policy.

The fact that an insurance policy provides: 'This certificate shall not be valid unless countersigned by a duly authorized agent of the company' was held not to alter the inception and expiration dates as set forth on the policy in the following cases: Simons v. American Fire Underwriters of American Indemnity Co., 203 S.C. 471, 27 S.E.2d 809; Oklahoma Farm Bureau Mut. Ins. Co. v. Brown, 208 Okl. 317, 255 P.2d 919. See also Annotation 22 A.L.R.2d 984.

Plaintiff contends in his brief that Davis v. Home Ins. Co., 125 S.C. 381, 118 S.E. 536, has identical facts with the case here. Counsel for the Indemnity Company contended in the Case of Simons v. American Fire Underwriters of American Indemnity Co., supra, which was before the Supreme Court of South Carolina in 1943, twenty years after the Davis case, that the Davis case controlled the Simons case. The South Carolina Supreme Court said [203 S.C. 471, 27 S.E.2d 811]: '* * * but in this we think the appellant is mistaken. In the Davis case the controversy arose over the fact that the loss occurred within the twelve months period for which the premium had been paid by the insured, but after twelve months from the effective date of the policy as expressed therein. In other words, the effective date stated in the policy was an earlier date than the actual date of the countersigning of the policy. And the policy contained an express provision that it should be valid only when countersigned by the duly authorized agent of the Company. Because of this provision the policy was held effective to cover the loss. In the policy now before the Court, the provision is: '* * * but this policy shall not be valid unless countersigned by a duly authorized representative of this Company.' (Emphasis added.) It was in fact so countersigned, and there is nothing in the instrument as introduced in evidence to deprive the insured of the right to rely upon the terms of the policy as far the question of its taking effect is concerned. ' In this case the facts were these: On 6 March 1941, at...