Anderson v. American Mutual Liability Insurance

188 S.E. 642, 211 N.C. 23, 1936 N.C. LEXIS 392

• Court: Supreme Court of North Carolina
• Decided: December 16, 1936
• Status: Published

Opinion

ClaRksojV, J.

We cannot sustain the nonsuit as we construe the record. If the car in the collision was G.M.O. 2-T truck 1927, Serial Ho. 50574, Motor Ho. 1991549, on which plaintiff had liability insurance in defendant company, the matter of identification was for the jury to determine. When the new engine was installed in the truck, the Motor Ho. 1954668 and Serial Ho. T-50379 did not change it, as it was the same truck with repairs. Repairing the truck by placing a motor and chassis in it did not make a new ear. The number of an automobile is inserted generally for the purpose of identification. The matter of identification of the truck in the collision was for the jury.

In Motor Co. v. Motor Co., 197 N. C., 371, there was installed in the car in controversy, to repair same, a new engine or motor. At p. 374 we find: “In Gregory v. Stryker, 2 Denio (N. Y.), at p. 630, speaking to the subject, it is said: ‘Rut it is equally clear, as a general proposition, that where the owner of a damaged or worn-out article delivers it to another person to be repaired and renovated by the labor and materials of the latter, the property in the article, as thus repaired and improved, is all along in the original owner, for whom the repairs were made, and not in the person making them.’ Comins v. Newton, 10 Allen (Mass.), 518; Southworth v. Isham, 5 N. Y. Supp., 448.”

A case analogous is Reimers v. International Indemnity Co. (Wash.), 254 Pac. Rep., 852 (853-4) : “Perhaps, if needed, another argument, might he advanced as being not wholly illogical. Respondent might have repaired his truck, piece by piece and part by part, until the old chassis was wholly superseded by a new. If, instead of doing it piecemeal, it was done all at once, was it any less a repair? The discarded parts were certainly not a truck, and the original truck either then ceased to exist or continued as the repaired truck.”

In the automobile liability policy is the following: “To serve the-insured by such investigation of each alleged accident and such negotiation or settlement of each claim as the company may deem expedient. To defend, in behalf of the insured, each suit, even though wholly groundless, brought against the insured to enforce a claim for such injury, death, or damage, and, as respects each suit, to pay the entire premiums on attachment, removal, and appeal bonds, costs taxed against the insured, and interest accruing on the entire judgment up to the date of payment by the company of its share of the judgment.” Hotice of the claims made by parties injured was given by plaintiff to defendant under the terms of the policy, we think, in a reasonable time.

In Lowe v. Fidelity & Casualty Co., 170 N. C., 445, at p. 446, we find (plaintiff’s appeal) : “An insurance company cannot deny all liability under a contract of insurance and then be heard to say, after it has repudiated the contract, that assured should have given it notice when the action was instituted, so that it could have defended the action in accordance with the terms of the contract. Having denied any liability under the policy, it was neither necessary nor proper to-notify defendant again,” quoting authorities. At p. 447 (defendant’s, appeal) : “The defendant appeals because the judge rendered judgment, in favor of the plaintiff, receiver, for costs, expenses, and attorney’s fees incurred by plaintiff in defending the Marcus suit. The plaintiff’s costs, expenses, and attorney’s fees incurred by him in defending the suit amount to $352.95, of which he has paid $140.00. The contract makes it the duty of defendant, at its expense, 'to defend in the name and on behalf of the assured any suit brought against the assured to enforce a claim, whether groundless or not, for damages on account of bodily injuries or death suffered, or alleged to have been suffered, through the-assured’s negligence, by the persons described in subsections (a) and (b) of the preceding paragraph, at the places and under the circumstances therein described, and as the result of an accident occurring while this policy is in force.’ The failure of the defendant to defend the suit, after repudiating its liability to the assured, constituted a distinct breach of contract and justified the plaintiff in defending it at his own expense. Beef Co. v. Casualty Co., 201 U. S., 173. These costs and expenses constitute a primary liability of defendant that plaintiff may recover as damages for the breach of the contract. Power Co. v. Casualty Co., 153 N. C., 279.” Insurance Co. v. Harrison-Wriqht Co., 207 N. C., 661.

The defendant denied liability in the Lowe case, supra, and it was said that notice was not necessary, but, going further, we think, under the facts and circumstances of this case and the terms of the policy, the notice was sufficient. Mewborn v. Assurance Corp., 198 N. C., 156.

It goes without saying that the compromise amount sued for by plaintiff, which was paid by plaintiff to those injured, must be reasonable and made in good faith. Defendant contends in its brief that plaintiff knew that the truck involved in the collision was not insured at the time of the collision, 3 June, 1933, and “is established by the evidence.” We cannot so hold. We think this is a matter for the jury on the facts appearing' in the record.

Eor the reasons given, the judgment in the court below is

Reversed.