Zibelin v. Pawtucket Mutual Fire Insurance Co.

50 S.E.2d 290, 229 N.C. 567, 1948 N.C. LEXIS 341

• Court: Supreme Court of North Carolina
• Decided: December 1, 1948
• Status: Published

Opinion

Devix, J.

Unfortunately for the plaintiff, he failed to observe the terms of his policy and to comply with its plainly written provisions. The contract between the plaintiff and the Insurance Company embodied in the standard form of fire insurance policy is one prescribed by statute (G.S. 58-177), and its provisions have been held by this Court to be valid and just to. insured and insurer. Greene v. Ins. Co., 196 N. C. 335, 145 S. E. 616. The rights and liabilities of both under the policy must be ascertained and determined in accord with its terms. Insurance Co. v. Wells, 226 N. C. 574, 39 S. E. (2) 741; Midkiff v. Ins. Co., 197 N. C. 139, 147 S. E. 812; Muse v. Assurance Co., 108 N. C. 240, 13 S. E. 94. There was here no denial of liability on other grounds by the Insurance Company within the time limited for filing proof of loss which would have dispensed with that requirement. Mercantile Co. v. Ins. Co., 176 N. C. 545, 97 S. E. 476; Gorham v. Ins. Co., 214 N. C. 526, 200 S. E. 5. While provisions in the policy restricting the local agent’s power to waive conditions as a general rule do not include conditions existing at the inception of the contract, Aldridge v. Ins. Co., 194 N. C. 683, 140 S. E. 706, the rule is otherwise as to those arising after the policy has been issued and loss has occurred. Bullard v. Ins. Co., 189 N. C. 34, 126 S. E. 179; Smith v. Ins. Co., 193 N. C. 446, 137 S. E. 310. Suggestions made by the local agent to the insured after loss are not within the scope of his authority. Horton v. Ins. Co., 122 N. C. 498, 29 S. E. 944. Nor may he alter the terms of the policy after its issue and loss thereunder Has been reported. Sun Ins. Office v. Scott, 284 U. S. 177, 29 A. J. 623. Limitations on the agent’s authority expressed in unambiguous language in the policy must be held binding on the insured. May on Ins., secs. 137-138. In Tatham v. Ins. Co., 181 N. C. 434, 107 S. E. 450, it was held the provision in the policy limiting the time within which suit may be instituted was not extended or waived because of the time consumed under an agreement for appraisal. Plaintiff relied upon the suggestion and advice of defendant’s local agent, but this cannot be held binding upon the company or to extend its liability, after the inception of the contract and after the loss, beyond that which it has undertaken and which is expressed in the written contract. As the parties have contracted so must they be bound.

The cases cited by plaintiff are not controlling on the facts here presented. At the time of issuing the policy the local agent pro hac vice represents the company and his knowledge is ordinarily held to be notice to his principal. But this rule does not apply to authorize extension of time for the performance of conditions precedent to establishing liability after the loss has occurred, and in direct contradiction of the terms of the written contract of insurance. While a waiver by an officer of the company or by an adjuster, who for the very purpose of determining and adjusting the loss has been called in by the Insurance Company, is generally held binding on the company as to filing proofs of loss (Strause v. Ins. Co., 128 N. C. 64, 38 S. E. 256; Dibbrell v. Ins. Co., 110 N. C. 193, 14 S. E. 506), that situation is not presented here.

The judgment overruling the defendant’s demurrer is

Reversed.