New Hampshire Fire Insurance v. Farmers Mutual Fire Insurance

172 S.E. 875, 206 N.C. 95, 1934 N.C. LEXIS 115

• Court: Supreme Court of North Carolina
• Decided: February 28, 1934
• Status: Published

Opinion

BeogdeN, J.

The clause in the policy of the defendant excluding liability in the event of other insurance is valid. Johnson v. Ins. Co., 201 N. C., 362; Flemming v. Ins. Co., 201 N. C., 846. However, the effect of such a clause in a standard fire insurance policy must be considered in connection with the New York standard mortgagee clause, which was attached to both policies. The New York standard mortgagee clause is a separate and independent contract between the company and the trustee, mortgagee or beneficiary in a deed of trust upon the property at the time the insurance is procured. Bank v. Assurance Co., 188 N. C., 747, 125 S. E., 631.

In the case at bar the beneficiary who held the policy of defendant, repudiated the same and returned it to the insured. The insured kept the policy in his possession and gave no notice to the defendant but procured a new policy in the plaintiff company, and forwarded the same to the- beneficiary who retained it until the time of the fire and made claim thereunder. Consequently, the trustee or beneficiary in the deed of trust cannot assert any right against the defendant by virtue of the repudiated policy. The insured can assert no right thereunder for the reason that he abandoned the policy and procured other insurance contrary to a valid clause therein contained. It follows, therefore, that the plaintiff cannot acquire by assignment or subrogation a right from a party who had no enforceable right. Indeed, the case of Johnson v. Ins. Co., supra, while not directly in point, is determinative of the controversy in principle.

Affirmed.