Nichols v. St. Paul Fire and Marine Insurance Co. , 12 N.C. App. 116 ( 1971 )

182 S.E.2d 585 (1971) 12 N.C. App. 116

J. B. NICHOLS
v.
ST. PAUL FIRE AND MARINE INSURANCE COMPANY.

No. 713DC441.

Court of Appeals of North Carolina.

August 4, 1971.

Milton C. Williamson and M. E. Cavendish, Greenville, for plaintiff appellee.

John H. Anderson, Smith, Anderson, Dorsett, Blount & Ragsdale, Raleigh, for defendant appellant.

BRITT, Judge.

Defendant first contends that plaintiff is not entitled to maintain this action for the reason that he did not file proof or notice of loss with defendant as required by the insurance policy. We do not agree with this contention.

The policy provides:

"The insured shall give immediate written notice to this Company of any loss * * * and within sixty days after the loss, unless such time be extended in writing by this Company, the insured shall render to this Company a proof of loss, signed and sworn to by the insured, stating the knowledge and belief of the insured as to the following: the time and origin of the loss, the interest of the insured and of all others in the property, the actual cash value of each item thereof and the amount of loss thereto. * * *

* * * * * *

No suit or action on this policy for the recovery of any claim shall be sustainable in court of law or equity unless all the requirements of this policy shall have been complied with, and unless commenced within twelve months next after inception of the loss."

It is settled law that, the words in an insurance policy having been selected by the insurance company, any ambiguity or uncertainty as to their meaning must be resolved in favor of the policyholder, or the beneficiary, and against the company. Wachovia Bank & Trust Co. v. Westchester Fire Insurance Co., 276 N.C. 348, 172 S.E.2d 518 (1970). Nowhere in the policy is there a definition of the word "insured" but it appears from the usage of the word in the policy that "insured" refers only to the named insured, William T. Cannon and Carlton Dail, T/A Cannon's Warehouse. While the policy makes provision for the coverage of tobacco owned by others but in the custody of Warehouse, it does not define the owners of the tobacco as "insureds" but does refer to them as "owners." Indeed, the provision requiring submission of notice and proof of loss states that "the insured shall render to the Company a proof of loss * * * stating * * * the interest of the insured and of all others in the property * * *." (Emphasis added.)

When plaintiff left his tobacco and truck in the custody of Warehouse, as the facts found by the trial judge and supported by the evidence so show, a baileebailor relationship for the mutual benefit of both was created. The facts show that Warehouse did receive proceeds of the insurance to cover the tobacco already weighed and ready for sale. Warehouse, apparently believing that plaintiff's tobacco was not covered by the policy of insurance, failed or refused to include the claims of plaintiff and others similarly situated in the proof of loss. It has been held that a bailor cannot void the effect of insurance providing coverage on the property of others in his custody simply by failing to file proofs of loss for the bailees' property in his possession. United States Fidelity & Guaranty Co. v. Slifkin, 200 F. Supp. 563 (N.D.Ala.1961). See also Exton & Co. v. Home Fire & Marine Ins. Co., 249 N.Y. 258, 164 N.E. 43 (1928). We hold that plaintiff was not required by the policy to give defendant notice and render proof of loss.

Defendant also contends that the trial judge erred in finding that plaintiff's tobacco was in the custody of insured for auction. This contention is without merit. Where a jury trial is waived, the court's findings of fact are conclusive if supported by any competent evidence, and a judgment supported by such findings will be affirmed. United States Piping, Inc. v. Travelers Indemnity Co., 9 N.C.App. 561, 176 S.E.2d 835 (1970). Plaintiff testified that he brought the tobacco to the warehouse for the purpose of selling it at auction. He left his truck in the warehouse and the doors to the warehouse were shut. When he returned the following morning, he noticed that the truck had been moved to allow additional trucks to enter the warehouse. Defendant's contention that the ASCS regulations govern the question of custody are erroneous. Those regulations merely provide a system for the enforcement of tobacco allotments.

The language of the policy providing coverage would seem to have contemplated this precise situation. The policy provided coverage for tobacco "the property of others while in the custody of the Insured * * * while on the premises of the above described tobacco sales warehouse or while located within 100 feet thereof whether in the open or in vehicles." (Emphasis added.) We hold that the evidence supports the finding that plaintiff's tobacco was in the custody of the insured for auction.

All pertinent facts found by the trial court are fully supported by the evidence, and the conclusions of law are supported by the findings of fact. The judgment is

Affirmed.

MORRIS and PARKER, JJ., concur.