Lane v. Iowa Mutual Insurance Company , 258 N.C. 318 ( 1962 )

128 S.E.2d 398 (1962) 258 N.C. 318

Joseph LANE
v.
IOWA MUTUAL INSURANCE COMPANY.

No. 462.

Supreme Court of North Carolina.

December 12, 1962.

Teague, Johnson & Patterson, Raleigh, for defendant appellant.

Dupree, Weaver, Horton & Cockman, Raleigh, for plaintiff appellee.

BOBBITT, Justice.

Defendant contends the judgment should be reversed on the basis of the facts set forth in Finding of Fact No. 6.

Reference is made to Swain v. Nationwide Mutual Insurance Co., 253 N.C. 120, 116 S.E.2d 482, where this Court, with reference to a similar factual situation, cited and discussed the statutory and policy provisions relevant to decision.

Plaintiff had no legal right under policy or statutory provisions to sue defendant unless and until plaintiff first obtained a final judgment against Haley. His final judgment against Haley established the amount of Haley's legal obligation to plaintiff. Defendant's agreement was to pay the amount for which Haley became "legally obligated."

Under G.S. § 20-279.21 (f)(1), as construed in Swain, Haley's failure to comply with policy provisions as to notice of accident and of suit did not defeat plaintiff's right to recover from defendant the amount of the judgment by which Haley's legal obligation to plaintiff was finally determined.

With reference to the finding of fact that Haley "did not file forms SR1 and SR21 with the Department of Motor Vehicles of North Carolina," it is noted: G.S. § 20-279.31 (a) prescribes the penalties for failure to report an accident as required in G.S. § 20-279.4. G.S. § 20-279.4 prescribes the contents of a report filed as required in G.S. § 20-166.1(b). We perceive no sound reason why the legal obligation of Haley or of defendant to plaintiff is impaired or affected by Haley's failure to file an accident report as required by statute.

With reference to the finding of fact that "plaintiff did not notify the Motor Vehicles Department of North Carolina that said Lemon Haley had been involved in the accident," it is noted: There is no finding that plaintiff failed to report the accident. It does not appear when plaintiff was advised that Haley was the driver who caused him to run off the road and strike the culvert. The accident occurred February 26, 1959, (so alleged and admitted in the pleadings) and plaintiff's action was commenced September 29, 1959. If plaintiff had failed to report the accident to the Department of Motor Vehicles as required by statute, such failure did not impair or affect the legal obligation of Haley or of defendant to plaintiff. Under G.S. § 20-279.21 (f)(1), as construed in Swain, defendant's liability (within the limits of the compulsory coverage) for the payment of the damages for which Haley was "legally obligated" became absolute on February 26, 1959, when plaintiff's car was damaged, at which time the policy issued by defendant to Haley was in full force and effect.

In Swain, the policy under consideration was issued voluntarily by the defendant. Relevant to the constitutional question then raised, this Court said: "When defendant voluntarily issued its policy to Owens, it did so with full knowledge that the provisions of G.S. § 20-279.21 (f)(1) became a part thereof as fully as if written therein; and, having voluntarily assumed the risk, it may not challenge the constitutionality of the statutory provisions."

The policy now under consideration is referred to in the findings of fact (but not in the pleadings) as an assigned risk policy. There are no findings of fact as to the plans and procedures adopted for the issuance of assigned risk policies under G.S. § 20-279.34 or as to the circumstances relating to the issuance by defendant to Haley of the policy now under consideration.

On appeal, by brief in this Court, defendant challenges for the first time the constitutionality of G.S. § 20-279.21 (f)(1) as construed in Swain when applied to an assigned risk policy. This constitutional question was not raised in the court below and may not be raised for the first time in this Court. Phillips v. Shaw, Com'r of Revenue, 238 N.C. 518, 78 S.E.2d 314; Baker v. Varser, 240 N.C. 260, 267, 82 S.E.2d 90; Pinnix v. Toomey, 242 N.C. 358, 367, 87 S.E.2d 893. "Therefore, in conformity with the well established rule of appellate courts, we will not pass upon a constitutional question unless it affirmatively appears that such question was raised and passed upon in the court below." Denny, J. (now C. J.), in State v. Jones, 242 N.C. 563, 564, 89 S.E.2d 129, 130.

With reference to the constitutional question defendant belatedly attempted to raise, see Sanders v. Travelers Indemnity Company, D.C., 144 F. Supp. 742.

As stated in Swain and quoted with approval in Nixon v. Liberty Mutual Insurance Co., 255 N.C. 106, 109, 120 S.E.2d 430, 433: "The 1957 Act required every owner of a motor vehicle, as a prerequisite to the registration thereof, to show ``proof of financial responsibility' in the manner prescribed by G.S. Article 9A, Chapter 20, to wit, the 1953 Act. The manifest purpose of the 1957 Act was to provide protection, within the required limits, to persons injured or damaged by the negligent operation of a motor vehicle; and, in respect of a ``motor vehicle liability policy,' to provide such protection notwithstanding violations of policy provisions by the owner subsequent to accidents on which such injured parties base their claims."

On authority of our decision in Swain, the judgment of the court below is affirmed.

Affirmed.