Rouse v. Albany Insurance Company

125 S.E.2d 424 (1962)

257 N.C. 267

C. S. ROUSE, trading as Model Cleaners, v. ALBANY INSURANCE COMPANY and Westchester Fire Insurance Company.

No. 315.

Supreme Court of North Carolina.

May 9, 1962.

*425 R. S. Langley, Kinston, for plaintiff, appellee.

Whitaker & Jeffress, by R. A. Whitaker, Kinston, for defendants, appellants.

HIGGINS, Justice.

According to plaintiff's allegations, he operated a dry cleaning plant in a one-story, masonry building located at 205 East Caswell Street in Kinston. Each defendant issued its separate policy containing the "C" Stock Coverage clause set out in the statement of facts. Each policy contained a provision that in case the plaintiff had other valid insurance any loss should be apportioned. By reason of the apportionment clauses in the policies, the presence of both insurers before the court is necessary for the court properly to apportion the loss and to fix the liability of each insurer. Pretzfelder v. Ins. Co., 116 N.C. 491, 21 S.E. 302; Redmon v. Ins. Co., 184 N.C. 481, 114 S.E. 758.

A joint demurrer cannot be sustained on the grounds of misjoinder if the complaint alleges a cause of action against any defendant. Williams v. Strickland, 251 N. C. 767, 112 S.E.2d 533; Paul v. Dixon, 249 N.C. 621, 107 S.E.2d 141. The defendants argue their joint demurrer for failure to state a cause of action should be allowed, even though misjoinder is waived by the joint demurrer.

The third ground of the demurrer raises the question whether the "C" stock coverage provision of the policies insures customers' clothes in possession of the plaintiff as bailee for dry cleaning purposes. The defendants contend (1) the policies were intended to insure the plaintiff against liability to the owner and not to insure the property, (2) the complaint having alleged the clothing was destroyed by a fire of unknown origin, the plaintiff is not liable on the ground of negligent loss, and hence the defendants are not liable to him as bailee.

The policies are not before us. However, the complaint alleges that each is a standard North Carolina fire insurance policy. The plaintiff alleges the policies insured "the contents contained in the one-story, masonry building with approved roof used as a dry cleaning plant located at 205 East Caswell Street, Kinston." Each insurer, therefore, was charged with notice not only of the type of articles the plaintiff would receive, but where they would be stored. The policy covered "the property of the insured or for which the insured is liable."

The courts are divided on the question whether "C" is indemnity insurance against the insured's legal liability for loss or whether it insures the property which the insured possesses as bailee. North Carolina seems never to have decided the question. The authorities are cited and discussed in 29 Am.Jur., "Insurance," §§ 295, 296, pp. 677, 678: "Provisions in a fire insurance policy extending coverage to property held by the insured in trust, on commission, or in a similar manner are *426 usually held to include ordinary bailments and to insure the property to its full value and not merely the bailee's interest unless the coverage is limited in that respect by other policy provisions. Policy provisions covering property contained in specified places and `for which the insured is liable' have been held to insure against loss of the property and not to indemnify insured against his legal responsibility." (Emphasis added.) See also to the same effect, 67 A.L.R.2d Anno.: Fire Insurance, pp. 1243, et seq. The foregoing seems to state the general rule.

We hold the insurance policies, as described in the complaint, insured the contents of the described building, including the clothing held by plaintiff as bailee, and that he is entitled to recover their value upon proof of loss by fire. Of course, the payments will take the place of the bailed articles, and will be held by him as trustee for the benefit of the owners.

Affirmed.