Wright v. Mercury Ins. Co., 529
| Decision Date | 26 June 1956 |
| Docket Number | No. 529,529 |
| Citation | 244 N.C. 361,93 S.E.2d 438 |
| Court | North Carolina Supreme Court |
| Parties | George P. WRIGHT and Vernie D. Wright v. MERCURY INSURANCE COMPANY, a Capital Stock Company of St. Paul, Minnesota. |
Moody & Moody, Siler City, and Ottway Burton, Asheboro, for plaintiffs, appellants.
Jordan & Wright and Charles E. Nichols, Greensboro, for defendant, appellee.
This case involves the coverage of an insurance policy on a Ford dump truck. The appeal challenges the acts of the court below in (1) allowing the defendant's motion for nonsuit at the close of plaintiffs' evidence and (2) excluding testimony offered by plaintiffs.
The allegations of the complaint are substantially as follows:
One. On 8 September 1951, in consideration of a premium of $129.30 paid to it, defendant issued its policy of collision insurance to George P. Wright on a 1951 Ford dump truck, a copy of which policy is attached to the complaint marked Exhibit A, and made a part thereof. The policy expired on 8 March 1953. It contained a notice of a lien to Associates Discount Corporation, and contained a loss payable clause to it.
Two. About 30 January 1952 George P. Wright transferred ownership of this truck to Vernie D. Wright upon the latter's agreement to assume the monthly installments on the lien held by Associates Discount Corporation, and upon the further agreement to permit George P. Wright and the lienholder to hold the certificate of title to the truck and to be jointly entitled to the immediate possession of the truck in the event of default in the installment payments, because the lienholder refused to release George P. Wright from liability upon its lien. On 30 January 1952 plaintiffs through Associates Discount Corporation gave to defendant notice of this change of interest.
Three. On 22 July 1952 while said policy was in full force and effect, the Ford dump truck suffered a collision loss within the terms and provisions of the policy. The truck was damaged in the amount of $1,799.00, which sum the defendant has contracted to pay plaintiffs under the policy less $100. The plaintiffs have made demand upon the defendant for payment under the terms of the policy, which demand the defendant has refused.
The defendant filed an answer admitting the receipt of the premium and the issuance of the policy to George P. Wright. The defendant further admitted in its answer that on 30 January 1952 George P. Wright transferred ownership of the Ford dump truck to Vernie D. Wright, but alleged that it had no knowledge of the transfer of ownership until after the collision on 22 July 1952. In its answer it denied that the truck suffered a collision loss within and covered by the terms, conditions and provisions of its policy. The defendant further answering the complaint and as further defenses thereto alleged:
One. The policy of insurance issued by the defendant to George P. Wright provided, among other things, as follows: 'Assignment of interest under this policy shall not bind the company until its consent is endorsed hereon. ' The policy also provided as follows: ' The defendant did not at any time endorse upon the said policy its consent to any assignment thereof to Vernie D. Wright, or any other person. The policy further provided in the declaration as follows:
The defendant alleges that it is not liable for the payment of any amount by reason of the damage to the Ford dump truck which occurred on 22 July 1952, because George P. Wright, the insured in said policy, was not the sole owner of said vehicle, and the defendant had no notice or knowledge of said change of ownership, and the policy had not been legally transferred and assigned to any other person in the manner required by the terms and provisions of said policy.
Two. Since George P. Wright divested himself of the ownership of said truck on or about the 30th day of January 1952, and since the policy was not transferred or assigned to Vernie D. Wright, the policy ceased to afford any coverage on the truck as of the date the same was transferred by the insured, George P. Wright, and the defendant herewith tenders into the registry of the Clerk of the Court the sum of $109.73, being $93.99 pro rata refund of the unearned premium upon said policy, together with the sum of $15.74 interest thereon computed at the rate of six (6%) per cent per annum from January 30, 1952, to the date of said tender, in order that the Court may direct refund of said unearned premium to George P. Wright or such other person as may be lawfully entitled thereto. The policy of insurance had attached thereto, and made a part thereof, a certain limitation of use endorsement as follows:
'Limitation of Use Endorsement-- Commercial Automobiles.
'In consideration of the premium at which the policy designated below is issued, it is represented by the Insured that no regular and frequent trips of commercial vehicles described in such policy are or will be made during the policy period to any location beyond a 50 mile radius from the limits of the city or town of principal garaging of such vehicles.
'Nothing herein contained shall be held to vary, alter, waive or extend any of the terms, conditions, provisions, agreements or limitations of the undermentioned policy, other than as above stated.
'This endorsement shall take effect on the 8th day of September 1951. Attached to and forming part of Policy No. 332-02195 issued to George P. Wright of Staley, N. C. by the Mercury Insurance Company, St. Paul, Minnesota. Not valid until countersigned by an authorized agent of Company at Greensboro, N. C. this 8th day of September 1951.
The policy provided that the insured truck would be principally garaged at Route No. 1, Staley, N. C. The defendant, from information and belief, alleges that during the spring and summer of 1952 the Ford dump truck was regularly and frequently used on trips to locations beyond a 50 mile radius of Route No. 1, Staley, N. C., and that at the time of the collision alleged in the complaint this truck was at a point more than 50 miles from Route No. 1, Staley, N. C., which trip was one of the regular and frequent trips upon which the truck was used beyond said 50 mile radius. Therefore, the breach of the representation set forth in the limitation of use endorsement deprives the plaintiffs, as well as all other persons, firms and corporations, of the right to make any recovery for damages to this truck arising out of the accident of 22 July 1952, even if said policy of insurance was otherwise in full force and effect, which is again denied.
The plaintiffs filed no reply to defendant's answer. The complaint is their sole pleading.
The plaintiffs introduced in evidence the insurance policy attached to their complaint. Their evidence tends to show these facts: On or about 30 January 1952 George P. Wright, the insured and a man 77 years old, transferred and assigned his ownership of the Ford dump truck to his son Vernie D. Wright, but the consent of the defendant to such assignment was never endorsed on the policy. The declaration of George P. Wright, the insured, attached to the policy stated the Ford dump truck will be principally garaged at Route No. 1, Staley, North Carolina. The policy provides, 'by acceptance of this policy the insured agrees that the statements in the declarations are his agreements and representations, that this policy is issued in reliance upon the truth of such representations and that this policy embodies all agreements existing between himself and the company or any of its agents relating to this insurance. ' Vernie D. Wright never used this...
To continue reading
Request your trial
-
Rivers v. State Capital Life Ins. Co.
...Company. It is to be noted that plaintiff has not pleaded any waiver or estoppel in respect to such alleged tender. Wright v. Mercury Ins. Co., 244 N.C. 361, 93 S.E.2d 438. While it is true that there is a diversity of opinion among the serveral jurisdictions as to whether in the case of Gr......
-
Widows Fund of Sudan Temple v. Umphlett
...action by appellee. His rights cannot be diminished by changing the position of insurer from defendant to plaintiff. Wright v. Mercury Ins. Co., 244 N.C. 361, 93 S.E.2d 438; Tolbert v. Mutual Benefit Life Ins. Co., 236 N.C. 416, 72 S.E. 2d 915; Strigas v. Durham Life Ins. Co., 236 N.C. 734,......
-
Rural Plumbing & Heating, Inc. v. H. C. Jones Const. Co., 529
...and established by the greater weight of the evidence.' Hall v. Odom, 240 N.C. 66, 70, 81 S.E.2d 129, 133. Accord, Wright v. Mercury Insurance Co., 244 N.C. 361, 93 S.E.2d 438; Lamb v. Staples, 236 N.C. 179, 72 S.E.2d Defendants' other assignments have been considered and found to be withou......
-
Textile Ins. Co. v. Lambeth
...of the collision truck when operated more than fifty miles from the city limits of High Point, North Carolina. Wright v. Mercury Insurance Co., 244 N.C. 361, 368, 93 S.E.2d 438, and cases cited. Indeed, the Warner defendants make no contention that this policy protects them in respect of cl......