Baum v. North River Insurance

167 S.E. 472, 204 N.C. 57, 1933 N.C. LEXIS 322

• Court: Supreme Court of North Carolina
• Decided: January 25, 1933
• Status: Published

Opinion

ClaeksoN, J.

This case was before this Court on a former appeal, 201 N. C., 445. In that case at p. 448 it was said, citing authorities: “In Cyc. of Insurance Law, Vol. 4 (Couch), section 966b, p. 3347, the following principle is laid down: ‘A condition against the use or beeping of gasoline on the insured premises is not broken by its use to an extent necessary to carry on the business for which the insurer knew that the property insured was used, and where both parties must have known either that the business insured must be discontinued or gasoline used therein.’ (Note) ‘The keeping upon insured premises of a very small quantity of gasoline for use in an engine used to operate the machinery necessary for the business does not nullify insurance upon the property, although the keeping of gasoline is prohibited by the policy, if premiums were paid and accepted.’ ”

The able and learned judge who tried this case submitted an issue covering this aspect as follows: “Was it necessary to use an auxiliary gasoline engine incidental to the proper use and operation of said boat ?” This issue was answered “Yes.” The charge of the court below is not in the record and the presumption of law is that the court below charged the law applicable to the facts. We think the answer “Yes” to this issue sufficient to support the judgment.

No error.

CoNNOR, J., dissents.