W.P. Parker & Co. v. Continental Ins. Co.
| Decision Date | 11 December 1906 |
| Citation | 55 S.E. 717,143 N.C. 339 |
| Parties | W. P. PARKER & CO. v. CONTINENTAL INS. CO. |
| Court | North Carolina Supreme Court |
Appeal from Superior Court, Burke County; O. H. Allen, Judge.
Action by W. P. Parker & Co. against the Continental Insurance Company. From a judgment for plaintiff, defendant appeals. Affirmed.
Want of and defects in the proofs of loss are waived by the insurer's denying liability on other grounds.
This action was brought to recover the sum of $1,500 alleged to be due on a fire insurance policy, issued November 8, 1901, by the defendant to the plaintiff on a stock of goods, which were destroyed by fire November 18, 1901. The summons was issued May 14, 1904, and served on Avery & Ervin, local agents of the defendant company at Morganton. The defendant entered a special appearance and moved to dismiss the action because the summons had not been properly served, and the defendant was not, therefore, before the court. This motion was based on the ground that the defendant is a foreign corporation and the summons should, therefore, have been served on the state insurance commissioner, as required by the Acts of 1903, p. 768, c. 438, § 6 (Revisal 1905, § 4750) where such a company has been licensed to do business in this state. The court overruled the motion, but without finding any facts. Defendant excepted to the ruling. The defendant denied its liability on the policy upon these several grounds: (1) That no proofs of loss had been filed, the policy providing that the loss shall not be payable until 60 days after such proofs have been received. (2) That the plaintiff had not complied with the provisions of the iron-safe clause contained in the policy, by making an inventory of the stock of goods, and keeping a set of books showing a complete record of the business and by preserving the inventory and books securely locked in a fire-proof safe. The policy requires the inventory to be taken within 30 days after the date of the policy, unless one had already been made within the 12 months prior thereto, and directs that the books shall show the condition of the business from the date of the inventory. (3) That this action was brought on May 7 1904, nearly 2 1/2 years after the fire, which occurred on November 18, 1901, whereas the policy requires that any action thereon shall be commenced within 12 months next after the fire. A suit for the same cause of action was brought February 26, 1902, in which it appears, at least inferentially, that a nonsuit was taken, and this action was brought within six months afterwards. There was evidence tending to show that proofs of loss were filed with the company's agent in January or February, 1902, and that $20 had been paid to the agent, it being the balance due on the premium, and also evidence as to the loss and the value of the goods which had been destroyed by the fire. The jury returned a verdict for the plaintiff, and, from the judgment thereon, the defendant appealed.
Avery & Ervin, for appellant.
J. F Spainhour, for appellee.
WALKER J. (after stating the case).
The motion to dismiss the action was properly denied. The Revisal 1905, § 4750, does require service of legal process upon any foreign insurance company, licensed to do business in this state, to be made by leaving the same with the insurance commissioner, and it provides that in such a case no other service shall be valid. But it does not appear affirmatively in this case that the defendant is a licensed company. In the absence of any statement of the facts by the presiding judge, we must assume that he found such facts as would sustain his ruling. Whitehead v. Hale, 118 N.C. 601, 24 S.E. 360. Error in the decisions of the lower court is never presumed here, but the contrary, and he who alleges such error must show it. The defendant had the right to have the facts stated by the judge, but, in the absence of any request from it to the judge so to do, the failure to do so was not error. Millhiser v. Balsley, 106 N.C. 433, 11 S.E. 314; Holden v. Purefoy, 108 N.C. 163, 12 S.E. 848; Carter v. Rountree, 109 N.C. 29, 13 S.E. 716; Smith v. Whitten, 117 N.C. 389, 23 S.E. 320. We must, therefore, presume that his honor found as a fact that the defendant was not duly licensed, and that section 4750 of the Revisal did not apply, but that the process had been properly served under the Revisal 1905, § 440. There may be a presumption that the defendant was licensed, as the law never presumes a wrong to have been committed or that a person willfully violates the law, and, even if it exists, it is not a conclusive presumption, but may be rebutted, and we must again assume that the judge found that it was contrary to the fact. In Fisher v. Insurance Co., 136 N.C. 218, 48 S.E. 667, it was admitted that the defendant was not licensed, and that the act of 1903, p. 766, c. 438 (Revisal 1905, § 4750) did not therefore, apply. But that case is, in principle, an authority for our ruling in this one, though the service was there made on the secretary of the Corporation Commission, as we assume in this case the existence of a fact which was admitted in that case.
The defendant having denied its liability to the plaintiff on the policy by alleging that there was a violation of...
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