Proffitt Mercantile Co. v. State Mutual Fire Insurance

Claek, 0. J.

This action is to recover for loss by fire upon two insurance policies, one for $300 on fixtures and $1,000 on stock of goods. Tb.e loss by fire and tbe value of tbe goods are not in controversy. . Tbe defendant in its brief abandons all exceptions except 7 and 8. Exception 7 is because tbe court refused to nonsuit tbe plaintiff because of tbe failure of tbe plaintiff to file claim for loss and because tbe property was mortgaged, and Exception .8 is because tbe court instructed tbe jury “If you believe tbe evidence in this case to answer tbe issue ‘Yes/ ”

and to assess tbe plaintiff’s recovery at three-fourths of tbe fair, reasonable value of tbe goods and fixtures covered by these policies that were lost and destroyed in tbe fire, provided the amount shall not exceed $1,000 on tbe goods and merchandise and $300 on tbe fixtures.

Tbe uncontradicted testimony of tbe plaintiff is that when be asked for a blank to make out tbe proof of claim tbe agents of tbe defendant told him it was not necessary to do anything, and tbe company did not send him any blank or any letter asking him to make out proof of claim. Tbe defendant denied liability and refused to pay tbe loss. This is a waiver of tbe right to demand proof of loss and the denial of liability dispenses with tbe necessity of filing such proof.

Gerringer v. Ins. Co., 133 N. C., 407 ;

Parker v. Ins. Co., 143 N. C., 343 ;

Lowe v. Fidelity Co., 170 N. C., 446.

There is no evidence of a chattel mortgage on any of tbe property either at tbe time tbe policy was taken out or at tbe time of tbe fire.

*546 The only evidence on the point is on the part of the plaintiff, who testified that’ there had been a mortgage on the property, but it had been paid off and discharged before the policy of insurance was taken out. There was but one inference which could be drawn from the testimony, if found to be true by the jury, and the court instructed the jury correctly. Cau ley v. Dunn, 167 N. C., 32 .

No error.