Sparrow v. American Fire & Casualty Company

89 S.E.2d 800 (1955) 243 N.C. 60

I. J. SPARROW, Jr., trading as Sparrow's Super Market,
v.
AMERICAN FIRE & CASUALTY COMPANY (Original Party Defendant) and Commercial National Bank of Kinston, North Carolina (Additional Party Defendant).

No. 307.

Supreme Court of North Carolina.

November 2, 1955.

LaRoque & Allen, Kinston, for plaintiff, appellant.

White & Aycock, Kinston, for defendant Ins. Co., appellee.

JOHNSON, Justice.

The plaintiff insists that he is entitled to recover under the comprehensive clause—"Coverage F," which binds the insurance company to pay for "any direct and accidental loss of or damage to the automobile. * * *" However, to recover under this clause, it is noted that the loss or damage must be both "direct" and "accidental." In the case at hand, the facts agreed establish no element of "accidental" loss or damage as that term is commonly understood and also well defined in our decisions. See Fletcher v. Security Life & Trust Co., 220 N.C. 148, 16 S.E.2d 687; Kirkley v. Merrimack Mutual Fire Ins. Co., 232 N.C. 292, 59 S.E.2d 629.

Nor is the plaintiff entitled to recover under the Theft (Broad Form) clause—"Coverage I," which binds the insurance company to pay for loss or damage to the automobile caused by "theft, larceny, robbery or pilferage." The facts agreed do not bring the case within the meaning of this clause. See Hanes Funeral Home v. Dixie Fire Ins. Co., 216 N.C. 562, 5 S.E.2d 820; U Drive It Auto Co. v. Atlantic Fire Ins. Co., 239 N.C. 416, 80 S.E.2d 35.

Where, as here, a case is tried on an agreed statement of facts, such statement is in the nature of a special verdict, admitting there is no dispute as to the facts, and constituting a request by each litigant for a judgment which each contends arises as a matter of law on the facts agreed, and consequently the court is not permitted to infer or deduce further facts from those stipulated. U Drive It Auto Co. v. Atlantic Fire Ins. Co., supra.

The decisions relied on by the plaintiff are distinguishable.

The judgment below is

Affirmed.