W. I. Anderson & Co. v. American Mutual Liability Insurance, 212 N.C. 672 (1937)

Dec. 15, 1937 · Supreme Court of North Carolina

212 N.C. 672

W. I. ANDERSON & COMPANY v. AMERICAN MUTUAL LIABILITY INSURANCE COMPANY OF BOSTON.

(Filed 15 December, 1937.)

1. Insurance § 47—

Where insurer denies that the truck involved in the collision was covered by the policy, and refuses to defend the action by the injured party against insured, insured is entitled to recover of insurer the amount reasonably expended in defending the action upon the jury’s verdict establishing that the truck was insured under the policy.

2. Insurance § 43—

Motor and serial numbers on a truck insured are merely one method of identifying the truck, and repair of the truck and change of the numbers does not convert it into a new truck, and the identity of the truck as the truck insured was properly submitted to and determined by the jury under the evidence in this case.

3. Insurance § 50—

Error, if any, in the admission of the policy with some of the riders only, held cured by the later admission of all the riders.

4. Same—

Insurer denied that the truck involved in a collision was covered by the policy, and insured defended the suit for damages instituted by the injured person, and then instituted this action against insurer. Meld: Evidence that insured gave notice to insurer of the claims and that insured was reasonably required to pay the amount claimed in settlement, is competent.

Appeal by defendant from Armstrong, J., at 31 May Term, 1937, of GtuileoRD. No error.

This is an action instituted by tbe plaintiff against tbe defendant to recover tbe sum of $2,323.20, paid by plaintiff in settlement of claims for damages for bodily injuries resulting from tbe negligent operation by plaintiff’s agent of a certain truck alleged by plaintiff to be covered by, and embraced in, a liability insurance policy issued by tbe defendant to tbe plaintiff. When tbe original suits were instituted tbe defendant denied liability, assigning as its reason tberefor tbat tbe truck involved in said collision was not embraced witbin tbe terms of its policy. As a result tbe plaintiff was required to defend said actions and finally effected a settlement thereof, necessitating tbe expenditure of $2,323.20.

Tbis case bas heretofore been before tbis Court and is reported in 211, at page 23. Tbe facts are therein fully set out.

Appropriate issues were submitted to tbe jury and were answered by tbe jury in favor of tbe plaintiff. From judgment thereon tbe defendant appealed.

Frazier & Frazier for plaintiff, appellee.

Sapp <& Sapp for defendant, appellant.

Per Curiam.

As stated by tbe Court in its opinion on tbe former appeal herein, tbe rights of tbe parties in tbis controversy rest upon tbe identity of tbe truck being operated by plaintiff’s agent at tbe time of tbe collision out of which tbe claims for damages arose. Tbe jury, upon competent evidence, bas determined tbat tbe said truck was covered by tbe liability policy issued by tbe defendant. Tbat being true, tbe plaintiff is entitled to recover of tbe defendant tbe amount it was reasonably required to spend by virtue of tbe failure of tbe defendant to defend suits instituted against tbe plaintiff for damages growing out of tbe negligent operation of said truck. As stated by Clarkson, J., speaking for the Court on tbe former appeal: “If tbe car in tbe collision was CMC 2-T truck, 1927, Serial No. 50574, Motor No. 1991549, on which plaintiff bad liability insurance in defendant company, tbe matter of identification was for tbe jury to determine.” Tbe mere repair of tbe truck did not convert it into a new truck, nor did tbe change of tbe motor and serial numbers have tbat effect. Tbe identity of numbers merely constituted one method of identification. All of tbe evidence shows tbat tbis truck was GMC 2-T truck, 1927, owned by tbe plaintiff at tbe time of tbe issuance of tbe policy, and tbat it was tbe truck which was embraced in tbe schedule of cars and trucks covered by tbe policy.

Tbe plaintiff offered in evidence tbe original policy and only such riders or endorsements as it considered material. If it was error for tbe court to admit in evidence tbe policy without all tbe riders or endorsements, tbis error, if it be error, was later cured by admission of all of tbe riders.

In making out its case it was necessary for the plaintiff to show that it gave notice to the defendant of the claims made against it and to show that it was reasonably required to pay the amount claimed in settlement of the suits instituted against it. A number of the exceptions are directed to evidence to this effect. They cannot be sustained. ' Exception is likewise made to questions which were leading in their nature.. Whether such questions should be permitted rested within the sound discretion of the presiding judge.

We have examined all the other exceptions and assignments of error contained in the record and we can find in none of them sufficient merit to justify a new trial.

The jury has found by its verdict that the defendant insured the truck set out and described in the complaint, and that the plaintiff was reasonably required to expend the amount claimed by it herein in settlement of suits instituted for damages resulting from the negligent operation of the said truck. Under the verdict of the jury, judgment was properly rendered against the defendant.

In the record we find

No error.