McElrath v. STATE CAPITAL INSURANCE COMPANY

184 S.E.2d 912 (1971)

Nettie McELRATH v. STATE CAPITAL INSURANCE COMPANY.

No. 7128DC705.

Court of Appeals of North Carolina.

December 15, 1971.

*913 Wade Hall, Asheville, for plaintiff appellee.

Williams, Morris & Golding, by William C. Morris, Jr., Asheville, for defendant appellant.

VAUGHN, Judge.

Defendant contends that its motion for a directed verdict should have been allowed because plaintiff failed to prove that she complied with the policy provision with respect to filing proof of loss within sixty (60) days following the fire. Defendant notified plaintiff that her policy had been cancelled. Defendant continued to maintain that position in its pleadings when it alleged that the policy had been cancelled prior to the loss and that the policy was not in effect on the date of the fire. "The law does not require one to do a vain thing." Williams v. Greensboro Fire Insurance Co., 209 N.C. 765, 185 S.E. 21. Moreover, after plaintiff gave defendant written notice of the loss and personally notified defendant's agent, the company failed to furnish plaintiff proof of loss forms. G.S. § 58-31.1 is as follows:

"When any company under any insurance policy requires a written proof of loss after notice of such loss has been given by the insured or beneficiary, the company or its representative shall furnish a blank to be used for that purpose. If such forms are not so furnished within fifteen days after the receipt of such notice the claimant shall be deemed to have complied with the requirements of this policy as to proof of loss, upon submitting within the time fixed in the policy for filing proofs of loss, written proof covering the occurrence, character, and extent of the loss for which claim is made."

We hold that plaintiff's evidence is sufficient to sustain the court's finding and conclusion that defendant waived the policy provision requiring proof of loss to be furnished within sixty (60) days.

Defendant contends that the court should have granted its motion for a directed verdict for the reason that plaintiff had no interest in the property capable of being insured. The deed to the property was in the name of plaintiff's husband who died intestate in 1946 leaving plaintiff and six minor children surviving. Since that date plaintiff has been in possession of and has exercised dominion over the property. She has paid all taxes, kept the property insured and made all repairs. There is no suggestion of fraud or that defendant assumed any risk it did not intend to assume when it issued the policy. "In general, it is well-settled law that a person has an insurable interest in the subject matter insured where he has such a relation or connection with, or concern in, such subject matter that he will derive pecuniary benefit or advantage from its preservation, or will suffer pecuniary loss or damage from its destruction, termination, or injury by the happening of the event insured against." King v. National Union Fire Insurance *914 Co., 258 N.C. 432, 128 S.E.2d 849. Defendant's assignments of error based on the contention that the plaintiff did not have an insurable interest in the property are overruled. We have considered all of defendant's assignments of error which were brought forward. The judgment from which defendant appealed is affirmed.

Affirmed.

BROCK and BRITT, JJ., concur.