HALL
v.
HARLEYSVILLE MUT. CAS. CO. et al.
No. 233.
Supreme Court of North Carolina.
March 21, 1951.*161 W. H. McElwee, North Wilkesboro, and R. F. Crouse, Sparta, for plaintiff appellee.
Broughton, Teague & Johnson, Raleigh, and Larry S. Moore, North Wilkesboro, for defendant appellants.
BARNHILL, Justice.
It is to be noted in the beginning that the demurrer is in general terms. It does not point out any particular fact which should be but is not alleged. It seems to be directed solely to the contention that plaintiff as a third party beneficiary has no right to maintain an action on the policy. Even so, we take note of certain contentions advanced by defendant in its brief as to why the complaint fails to state a cause of action.
It is settled law with us that where the policy of insurance is against liability and not of indemnity and the liability of the insured has been established by judgment, the injured person may maintain an action on the policy of insurance, that is, coverage attaches when liability attaches, regardless of actual loss by the insured at the time, and the coverage inures to the benefit of the party injured. Carolina Transp. & Distributing Co. v. American Alliance Insurance Co., 214 N.C. 596, 200 S.E. 411; 6 Blashfield, Part 2, 104.
But here plaintiff is not required to look to, and we need not cite, former decisions of this Court. The right of action by a third party beneficiary is stipulated in the policy.
"Any person or organization or the legal representative thereof who has secured such judgment (against the insured) or written agreement (agreement signed by the insured, the claimant, and the company) shall thereafter be entitled to recover under this policy to the extent of the insurance afforded by this policy."
The policy of insurance which is made a part of the complaint insures, primarily, against liability arising out of the operation of the particular motor vehicle described in the policy. Defendant in its brief contends that as it is not alleged the death of plaintiff's intestate arose out of the negligent operation of this particular vehicle, the complaint fails to state a cause of action against defendant. But, on this record, such is not the case. The rider attached to the policy provides that "If the named insured is an individual who owns the automobile classified as `pleasure and business' or husband and wife either or both of whom own said automobile, such insurance as is afforded by this policy for bodily injury liability * * * with respect to said automobile applies with respect to any other automobile, subject to the following provisions * * *". And the provisions attached do not necessarily exclude the automobile involved in the collision which caused the death of plaintiff's intestate. That remains a matter of proof at the hearing. The allegation in this respect is sufficient to repel the demurrer.
The plaintiff alleges notice to defendant of plaintiff's claim and defendant's refusal to appear and defend the original action against the insured. While the defendant now directs attention to the failure of plaintiff to allege that the insured complied with the conditions and terms of said policy, it cites no decision from this or any jurisdiction in which it is held that such allegation is essential to the statement of a cause of action upon a liability insurance policy.
*162 "The designation of the condition as a condition precedent does not necessarily vary the court procedure or the rules of evidence which places the burden of proving an affirmative defense upon the party making it, especially where the condition relates to the conduct of the insured subsequent to the accident maturing the liability." MacClure v. Accident & Casualty Co., 229 N.C. 305, 49 S.E.2d 742, 747. Plaintiff is not required to negative the existence of an affirmative defense.
Whether plaintiff may offer evidence sufficient to bring his cause within the rule which renders defendant liable under its policy to the party injured by the negligent operation, by the insured, of an automobile covered by the policy is a question which must await the day of trial. The allegations contained in his complaint are sufficient to entitle him to the right to attempt to do so. This is all we are now required to decide.
The judgment overruling the demurrer is
Affirmed.