Suggs v. Braxton
| Decision Date | 11 December 1946 |
| Docket Number | 594 |
| Citation | 40 S.E.2d 470,227 N.C. 50 |
| Parties | SUGGS v. BRAXTON et al. |
| Court | North Carolina Supreme Court |
This was an action to recover collision insurance on an automobile. Plaintiff alleged that defendant Braxton was an automobile dealer, and also agent of defendant Insurance Company; that February 6, 1945, plaintiff borrowed of defendant Braxton $500 and to secure the loan executed to Braxton a mortgage on one Buick automobile in the amount loaned plus $115 to cover interest and collision, theft and fire insurance on the automobile; that the insurance obtained by Braxton was 'under binder No. 554' issued by defendant Insurance Company. It was alleged that plaintiff's automobile on March 17, 1945, was wrecked in collision, entailing loss in full amount of the insurance.
The defendant Insurance Company, in its answer denied that any binder issued by it covering plaintiff's automobile was in force at the time of the alleged collision. It was admitted, however, at the trial that defendant Insurance Company issued its binder No. 554 on plaintiff's automobile, and that the automobile was damaged in collision March 17, 1945.
At the trial the plaintiff, being called upon to produce any insurance policy or binder issued by defendant, admitted that he had no such binder or policy and was unable to produce same. Plaintiff's testimony as to his dealings with defendant Braxton was admitted by the court only against Braxton and not against defendant Insurance Company.
Defendant Braxton testified for plaintiff that he was agent of defendant Insurance Company, and that January 27, 1945, he was notified by defendant Insurance Company that it had decided to discontinue automobile finance insurance, and that after February 15 it would not accept any further business of this kind. He further testified that the binder No. 554 referred to in the plaintiff's complaint was issued February 6, 1945, by the Vice President of defendant Insurance Company, who was in Braxton's office at that time; that this binder covered plaintiff's automobile and was the only binder ever issued that did do so.
It was contended by the plaintiff that defendant Insurance Company agreed with Braxton, its agent, to allow this binder to remain in effect until April 11, 1945, or until Braxton could get some other company to take over the business.
The defendant Insurance Company offered duplicate of the binder No. 554, referred to, written by Basinger in Braxton's office, to which was attached a list of all the automobiles covered by the binder, including that of plaintiff Suggs February 6, 1945, showing coverage to March 1, 1945. In connection therewith Basinger testified that the premium paid to defendant Insurance Company by defendant Braxton for the plaintiff Suggs on the Suggs automobile was $9.10 to March 1, 1945, and that the binder expired on that date.
The motion of defendant Insurance Company for judgment of nonsuit, entered at close of plaintiff's evidence and renewed at close of all the evidence, was denied and exception noted. The motion of defendant Braxton for judgment of nonsuit was allowed.
Issues submitted to the jury as to the liability of defendant Insurance Company were answered in favor of plaintiff, and from judgment on the verdict defendant Insurance Company appealed.
Powell & Powell, of Whiteville, for plaintiff-appellee.
B Irvin Boyle, of Charlotte, and Varser, McIntyre & Henry, of Lumberton, for defendant Insurance Company, appellant.
Plaintiff did not appeal from the judgment of nonsuit entered as to the defendant Braxton, and hence we are not concerned on this appeal with the question of the liability of defendant Braxton under the evidence offered.
As to the other defendant, the Southeastern Fire Insurance, the plaintiff bottomed his action specifically on insurance coverage 'under binder No. 554.' This binder was issued February 6, 1945, by the Vice President of defendant Insurance Company and was admittedly the only binder or policy ever issued by the defendant covering plaintiff's automobile. This binder showed that the period for which the insurance was thereby contracted expired March 1, 1945, and it further appeared that the premium received by the defendant was the ratable amount due to that date.
From an examination of the...
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