Peirson v. American Hardware Mutual Insurance Co. , 248 N.C. 215 ( 1958 )

Bobbitt, J.,

concurring in result: I concur in the immediate result of the decision, namely, that the cáse be remanded for explicit findings of fact as to whether the Ford station wagon was used principally in “the business .operations of- S. Peirson & Co. Otherwise, my views •differ from those expressed in the Court’s opinion.

' The action is by S. Peirson, an individual. He asserts no right as partner in Peirson-Neville Co. or as partner in S. Peirson & Co. Nor does he seek to alter or reform the policy. The sole basis for his claim is that S. Peirson & Co. is not a partnership, but a business of which he is sole owner; and that the Ford station wagon was used principally in the business of S. Peirson & Go. but occasionally for non-business purposes.

My view is that the policy was intended to cover automobiles owned by and used principally in the business- of-S-. Peirson & Co., and that this coverage is not affected by the fact that S. Peirson & Co. was erroneously’described as a partnership. The controlling intent, as 1 se.e it, was to provide coverage for S. Peirson & Co. Whether such "business was a sole proprietorship, partnership or corporation was incidental.

If S. Peirson & Co. had been described as a sole proprietorship when in fact it was a partnership, involving a greater number of persons, perhaps an argument might be made that the erroneous description was .material to the risk; but when described as a partnership when in fact it was a sole proprietorship it would seem that the risk would be less, certainly no greater, than that contemplated by the insurer.

I cannot agree that a policy issued to provide coverage for both Peirson-Neville Co. and S. Peirson & Co. should be held to provide coverage only for Peirson-Neville Co. solely because S. Peirson & Co. was erroneously described as a partnership rather than as a sole proprietorship.

Denny and Rodman, JJ., concur in concurring opinion.