Gardner v. Carolina Insurance, 230 N.C. 750 (1949)

Oct. 19, 1949 · Supreme Court of North Carolina

230 N.C. 750

ED GARDNER v. THE CAROLINA INSURANCE COMPANY OF WILMINGTON, NORTH CAROLINA.

(Filed 19 October, 1949.)

1. Insurance § 19a—

Tbe provisions of the standard form of fire insurance policy are valid, and the rights and liabilities of both parties under the policy must be ascertained and determined in accordance with its terms. G.S. 58-177.

2. Insurance § 24a—

Ordinarily, plaintiff in an action on a policy of fire insurance must allege and prove that he filed proof of loss with insurer within sixty days after the occurrence of fire, as required by the policy, or waiver of such proof, and in the absence of allegation and evidence to this effect insurer’s motion to nonsuit is properly allowed.

Appeal by plaintiff from Patton, Special Judge, May Term, 1949, ClbvelaND.

Affirmed.

Civil action to recover on a fire insurance policy.

Plaintiff, being in possession of a tract of farm land under a bond for title, applied for and obtained from defendant a policy of insurance in tbe sum of $2,000 dated 20 January 1948, insuring iim against loss on account of tbe damage or destruction by fire of tbe building located on tbe farm. On 20 August 1948 tbe building was completely destroyed by fire. On 30 November 1948 plaintiff instituted tbis action to recover on tbe policy.

Plaintiff does not allege that be filed proof of loss witbin sixty days after fire and offered no evidence tending to show that sucb proof was filed or that it was in any manner waived. Instead, be testified: “Tbe insurance company bas never paid me for tbis bouse under tbis policy. I have not asked tbe insurance company to pay it.”

In tbe trial below wben plaintiff rested, tbe court, on motion of defendant, dismissed tbe action as in case of nonsuit. Plaintiff appealed.

A. A. Powell and J. B. Davis for plaintiff appellant.

D. Z. Newton for defendant appellee.

Barnhill, J.

Tbe contract between plaintiff and defendant is in tbe standard form prescribed by statute. G.S. 58-177. Tbe rights and liabilities of both parties under tbe policy must be ascertained and determined in accord witb its terms. Zibelin v. Insurance Co., 229 N.C. 567, and cases cited.

Under tbe terms of tbe policy tbe plaintiff was required to file witb defendant proof of loss witbin sixty days after tbe fire occurred, and tbe policy provides that unless tbis proof is filed witbin tbe prescribed period no suit may be maintained on tbe policy. Tatham v. Ins. Co., 181 N.C. 434, 107 S.E. 450; Zibelin v. Insurance Co., supra. Ordinarily, compliance with these provisions of the contract must be alleged in the complaint and proved at the hearing.

The defendant, of course, could waive the filing of proof of loss, and it is generally held that a denial of liability by the insurer, made during the period prescribed b'y the policy for the presentation of proof of loss, on grounds not relating to the proof, will be considered a waiver of the provision requiring such proof. Gerringer v. Insurance Co., 133 N.C. 407; Felts v. Insurance Co., 221 N.C. 148, 19 S.E. 2d 259; Gorham v. Insurance Co., 214 N.C. 526, 200 S.E. 5; Anno. 22 A.L.R. 408. But the record fails to disclose either allegation or evidence of waiver.

As the plaintiff filed no proof of loss and has failed to show waiver, he has no enforceable cause of action. Therefore the judgment below must be

Affirmed.