{ "id": 8658243, "name": "STRAUSE v. INSURANCE CO.", "name_abbreviation": "Strause v. Insurance Co.", "decision_date": "1901-03-26", "docket_number": "", "first_page": "64", "last_page": "66", "citations": [ { "type": "official", "cite": "128 N.C. 64" } ], "court": { "name_abbreviation": "N.C.", "id": 9292, "name": "Supreme Court of North Carolina" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "11 Fed. Rep., 482", "category": "reporters:federal", "reporter": "F.", "case_ids": [ 3778115 ], "opinion_index": 0, "case_paths": [ "/f/11/0482-01" ] }, { "cite": "123 Mass., 380", "category": "reporters:state", "reporter": "Mass.", "case_ids": [ 735188 ], "opinion_index": 0, "case_paths": [ "/mass/123/0380-01" ] }, { "cite": "122 N. C., 504", "category": "reporters:state", "reporter": "N.C.", "opinion_index": 0 }, { "cite": "110 N. C., 193", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11272959 ], "opinion_index": 0, "case_paths": [ "/nc/110/0193-01" ] }, { "cite": "121 N. C., 290", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8653018 ], "opinion_index": 0, "case_paths": [ "/nc/121/0290-01" ] }, { "cite": "135 N. Y., 298", "category": "reporters:state", "reporter": "N.Y.", "case_ids": [ 2255017 ], "opinion_index": 0, "case_paths": [ "/ny/135/0298-01" ] }, { "cite": "40 L. R. A., 408", "category": "reporters:federal", "reporter": "L.R.A.", "opinion_index": 0 }, { "cite": "31 L. R. A., 112", "category": "reporters:federal", "reporter": "L.R.A.", "opinion_index": 0 }, { "cite": "25 L. R. A., 637", "category": "reporters:federal", "reporter": "L.R.A.", "opinion_index": 0 }, { "cite": "23 L. R. A., 117", "category": "reporters:federal", "reporter": "L.R.A.", "opinion_index": 0 }, { "cite": "22 L. R. A., 527", "category": "reporters:federal", "reporter": "L.R.A.", "opinion_index": 0 }, { "cite": "111 N. C., 45", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8650497 ], "opinion_index": 0, "case_paths": [ "/nc/111/0045-01" ] }, { "cite": "125 N. C., 395", "category": "reporters:state", "reporter": "N.C.", "opinion_index": 0 } ], "analysis": { "cardinality": 333, "char_count": 4711, "ocr_confidence": 0.465, "pagerank": { "raw": 2.2847425859749884e-07, "percentile": 0.7855676141736448 }, "sha256": "4db947a275aa749eb18688117a89394047870e0e3e2d4dcc57adbc5c9109baf6", "simhash": "1:800d3389ecf85a15", "word_count": 835 }, "last_updated": "2023-07-14T15:44:14.013877+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "STRAUSE v. INSURANCE CO." ], "opinions": [ { "text": "Clauk, J.\nThis is an action upon a policy of fire insurance, the property therein insured having been destroyed by fire. The defendant\u2019s brief relies upon three grounds.\n1. That the interest of the insured in the property is not truly stated therein, and that it was not unconditional and sole ownership.\n2. That the manufacturing establishment therein insured was operated at night contrary to the provisions of the policy.\n3. That plaintiffs did not file proofs of loss as required by the policy.\nAs to the first ground, the plaintiffs had bought the property on credit and on trial, but the vendor retained no lien on it, and the plaintiff testified that he fully and accurately described his interest in the property to the defendant\u2019s agent who took doAvn the description of the property, filled up the blanks in the policy, countersigned and issued the same. This was left to the jury. In such case \u201cthe agent is the alter ego of the company and his knowledge is the knowledge of the company.\u201d Grubbs v. Ins. Co., 125 N. C., 395; Bergeron v. Ins . Co., 111 N. C., 45, and cases there quoted from N. C. Reports.\nThe plaintiff had an insurable interest, 13 A. and E. (2nd Ed.), 144, 145, 178, 119, and eases cited. The knowledge by the agent of the facts at the time he issued the policy and talcing plaintiff\u2019s money for insurance, estops the company, after the loss, to set up as a defence that the insured \u201cdid not have the sole and unconditional ownership required by the policy.\u201d Hamilton v. Ins. Co., 22 L. R. A., 527; Creed v. London, 23 L. R. A., 117; Forward v. Ins. Co., 25 L. R. A., 637; Dowling v. Ins. Co., 31 L. R. A., 112; Ins. Co. v. Fuller, 40 L. R. A., 408; Carpenter v. Ins. Co., 135 N. Y., 298.\nAs to the second ground, it is true that operating the mill at night would be a substantial violation of the terms of the policy, Alspaugh v. Ins. Co., 121 N. C., 290., but here the agent was notified and night permits to operate mill were obtained from the agent. The fire occurred more than three months thereafter and was in nowise traceable, so far as the evidence shows, to the working at night, which had long ceased.\n3. As to the last ground of objection, the adjuster of defendant company a week after the fire said to plaintiff that the property was a total loss; that he was going off; that plaintiff need not telegraph, but the following week he would make up proof of loss and send them in to the company.\nIt is well settled that the adjuster of the insurance company may by his acts or declarations waive the requirements as to proofs of loss, especially as to time. Dibbrell v. Ins. Co., 110 N. C., 193; Horion v. Ins Co., 122 N. C., 504; Little v. Ins. Co., 123 Mass., 380; Perry v. Ins. Co., 11 Fed. Rep., 482; 13 Am. and Eng. Enc. (2nd Ed.), 350, note 6.\nThe \u201cnon-waiver\u201d clause does not extend to conditions to be performed after the loss. Dibbrell v. Ins. Co., supra.\nThe Court had the discretionary power to permit plaintiff to file replication after verdict. Clark\u2019s Code, sec. 273 (3rd Ed.), and cases cited. In the present case \u201cthe Court inquired of defendant\u2019s counsel whether, if this reply had been filed before the trial, they would have conducted the case otherwise than as they had done, \u25a0 and offered for that cause to set aside the verdict and judgment and to grant a continuance if desired. The counsel informed the Court that they would not have offered other evidence, and did not desire verdict and judgment set aside on account of permission to file reply, but stood upon their exceptions taken during the trial and exception to said permission.\u201d\nNo error.", "type": "majority", "author": "Clauk, J." } ], "attorneys": [ "Flaming & Moore, and Skimier S Whedbee, for the plaintiff.", "Burwell, Walker & Gansler, Jarvis & Blow, Shepherd & Shepherd, for the defendant." ], "corrections": "", "head_matter": "STRAUSE v. INSURANCE CO.\n(Filed March 26, 1901.)\n1. INSURANCE \u2014 Title to Property Insured.\nThe purchaser of property on credit, the vendor retaining no lien thereon, has an insurable interest therein.\n2. INSURANCE \u2014 Use of Property Contrary to Policy.\nAn insurance agent may issue a permit to operate a mill at night, though the policy prohibits operation of the mill at that time.\n3. INSURANCE \u2014 Adjusting Loss \u2014 Waiver.\nAn adjuster of an insurance company may, by his acts or declarations, waive a requirement as to proof of loss, especially as to time.\n4. PLEADING \u2014 Filing Replication after Verdict.\nIt is descretionary with the Court to permit a replication to be filed after verdict.\nActioN by N. P. Strause and. IT. P. \u25a0 Strause, trading as Strause Bros., against Tlie Palatine Insurance Company, heard by Judge H. B. Siarbuclc and a jury, at December Term, 1900, of Pitt County Superior Court. From a judgment for plaintiff, the defendant appealed.\nFlaming & Moore, and Skimier S Whedbee, for the plaintiff.\nBurwell, Walker & Gansler, Jarvis & Blow, Shepherd & Shepherd, for the defendant." }, "file_name": "0064-01", "first_page_order": 100, "last_page_order": 102 }