Home Insurance Co. v. Ingold Tire Co.

BRITT, Judge.

Defendant contends that plaintiff does not have a claim against defendant for the reason that defendant was, at least in effect, an insured under the policy issued by plaintiff. We disagree with this contention.

In Insurance Co. v. Assurance Co., 259 N.C. 485, 487, 131 S.E. 2d 36, 38 (1963), we find: “When a mortgagee purchases with his funds insurance solely for his protection, the insurer, upon payment of the mortgagee’s loss as provided in the policy, is subrogated to the rights of the mortgagee against the mortgagor. Bryan v. Ins. Co., 213 N.C. 391, 196 S.E. 345; Batts v. Sullivan, 182 N.C. 129, 108 S.E. 511; Ins. Co. v. Reid, 171 N.C. 513, 88 S.E. 779; 29A Am. Jur. 807; 46 C.J.S. 183. Where, however, the insurance is procured by the mortgagee pursuant to the authorization and at the expense of the mortgagor, no right of subrogation exists and the amount paid by the insurer must be applied to discharge or reduce mortgagor’s obligation to mortgagee. (Citations.)”

The evidence in the instant case showed that the insurance in question was purchased by B-WAC with its funds solely for its protection, therefore, we think the first rule above stated applies.

Defendant contends the court made numerous errors in the admission of evidence and in its findings of fact and conclusions of law. We think two of the contentions are sufficient to warrant vacating the judgment.

The first of these relates to a document identified as plaintiff’s Exhibit 6, purporting to be a “Subrogation Receipt,” from B-WAC to plaintiff, acknowledging receipt of $12,745.01, and subrogating to plaintiff all rights which B-WAC had against defendant resulting from the fire in question. This document was essential to plaintiff’s case and although the record reveals that it was identified, the record fails to reveal that it was ever introduced. The record fails to disclose that the document was properly authenticated, therefore, we cannot assume that there was a mere omission in showing that the document was introduced.

Plaintiff argues that the order settling the case on appeal contains a finding that answers the contention in its favor. We disagree. The order provides: . and the Court further finds as a fact that, in reaching the Court’s Findings of Fact. Nos. 20 and 22, the Court did consider Plaintiff’s Exhibit 6, which is referred to in the attached Statement of Case on Appeal, as having been introduced in evidence.” We cannot construe the quoted statement as a finding that Exhibit 6 was introduced into evidence. ■ •

The second contention of defendant that has merit relates to the method employed by plaintiff to prove B-WAC’s loss. We do not think the evidence was sufficient to support the court’s findings as to the chattels in which B-WAC had a security interest and that were destroyed by fire.

Plaintiff’s evidence tended to show: The seller of the chattels prepared an invoice showing that the chattels were sold to B-WAC in Greensboro and shipped to defendant in Durham. The invoice showed the items sold, the quantity, and the price of each item. B-WAC then prepared a “B-WAC Wholesale Floor Plan” document on which was listed in one column the items set forth on the invoice; in an adjoining column headed “Release Amount” were listed the amounts which defendant owed B-WAC on each item; in another column headed “Date op Release” an employee of B-WAC wrote in the date each item was released from the instrument, that date being the date on which B-WAC received payment from defendant. At the bottom of each document was a promissory note covering the total cost of the items listed, plus charges; the note was signed on behalf of defendant by a representative of B-WAC pursuant to the power of attorney.

Over defendant’s objections, plaintiff made out its claim by showing the items on each “B-WAC Wholesale Floor Plan” sheet that had not been “released” by B-WAC, and the amount of the judgment is the sum total of those items. We perceive several fallacies in this procedure.

The burden was on plaintiff to prove its claim. Plaintiff’s claim against defendant is no greater than its legal liability was to B-WAC. Plaintiff was liable to B-WAC for the reasonable value of merchandise in which B-WAC had a security interest and which was destroyed in the fire. Under defendant’s agreement with B-WAC, defendant was authorized to sell the chattels in which B-WAC had a security interest in the regular course of defendant’s “retail trade at their usual retail price for cash or on installment terms.” B-WAC’s office that served defendant was located in Greensboro. The method used by plaintiff in showing the chattels destroyed in the fire fails to take into account that some of the property might have been sold for cash within a day or two prior to the fire and remittance not made to B-WAC, that some had been sold on installment terms, or even that defendant had wrongfully removed the property, or a part of it, from the building prior to the fire.

We do not hold that the “B-WAC Wholesale Floor Plan” documents were inadmissible in evidence, upon a proper showing that they were prepared, and that entries thereon were made, in the regular course of business. However, we do hold that the documents standing alone were insufficient to prove the chattels that were destroyed in the fire and their reasonable value.

For the reasons stated, the judgment is vacated, and, in the exercise of our discretion, we remand this cause to the superior court for a new trial.

New trial.

Chief Judge Brock concurs.