Suggs v. . Braxton

40 S.E.2d 470, 227 N.C. 50, 1946 N.C. LEXIS 351

• Court: Supreme Court of North Carolina
• Decided: December 11, 1946
• Status: Published

Opinion

Devin, J.

Plaintiff did not appeal from the judgment of nonsuit entered as to the defendant Braxton, and bence we are not concerned on this appeal with the question of the liability of defendant Braxton under the evidence offered.

As to the other defendant, the Southeastern Eire Insurance, the plaintiff bottomed His action specifically on insurance coverage “under binder No. 554.” This binder was issued 6 February, 1945, by the Vice-President of defendant Insurance Company and was admittedly the only binder or policy ever issued by the defendant covering plaintiff’s automobile. This binder showed that the period for which the insurance was thereby contracted expired 1 March, 1945, and it further appeared that the premium received by the defendant was the ratable amount due to that date.

From an examination of the pleadings in connection with the evidence offered, it is apparent that testimony, if otherwise competent, tending to show modification or extension of insurance coverage, would not avail the plaintiff here in view of the allegation in his complaint that his claim for loss occurring 17 March, 1945, was under binder No. 554 which in unequivocal terms limited the coverage to 1 March, 1945. Under his pleading his sole reliance was upon the coverage expressed in this binder and the binder shows the insurance had expired when the loss occurred. Matthews v. Ins. Co., 195 N. C., 374, 142 S. E., 233. No other insurance contract is alleged. The one shown in the record excludes liability after 1 March, 1945. Ins. Co. v. Wells, 226 N. C., 574, 183 S. E. (2d), 743; McCabe v. Casualty Co., 209 N. C., 577, 183 S. E., 743; Foscue v. Ins. Co., 196 N. C., 139, 144 S. E., 689; Distributing Corp. v. Indemnity Co., 224 N. C., 370, 30 S. E. (2d), 377; Floars v. Ins. Co., 144 N. C., 232, 56 S. E., 915.

Plaintiff’s recovery is to be had, if at all, on the theory of the complaint and not otherwise. Coley v. Dalrymple, 225 N. C., 67, 33 S. E. (2d), 477; Atkinson v. Atkinson, 225 N. C., 120, 33 S. E. (2d), 666; Balentine v. Gill, 218 N. C., 496, 11 S. E. (2d), 456; Barron v. Cain, 216 N. C., 282, 4 S. E. (2d), 618. The plaintiff is bound by the allegations in his complaint. Proof to avail must correspond with the allegations. As was said in Whichard v. Lipe, 221 N. C., 53, 19 S. E. (2d), 14, “The plaintiff must make out her case secundum allegata, and the Court cannot take notice of any proof unless there be a corresponding allegation (citing cases). Where there is a material variance between the allegation and the proof this defect may be taken advantage of by motion for judgment as of nonsuit.” Talley v. Granite Quarries Co., 174 N. C., 445, 93 S. E., 995.

The meaning and effect of a binder in the law of insurance is discussed in Distributing Corp. v. Indemnity Co., 224 N. C., 370, 30 S. E. (2d), 377; Lea v. Ins. Co., 168 N. C., 478, 84 S. E., 769; Gardner v. Ins. Co., 163 N. C., 367, 79 S. E., 806; 29 Am. Jur., 158.

On this record we conclude that defendant Insurance Company’s motion for judgment of nonsuit should have been allowed, and that the judgment must be

Eeversed.