Opinion
No. 7111DC269
Filed 18 August 1971
Actions 5; Insurance 76 — automobile fire insurance — intentional burning by deceased insured's son — recovery of insurance proceeds — public policy Public policy prevents the administrator of the named insured from recovering under an insurance policy for the loss of an automobile by fire where the automobile was intentionally burned by the named insured's son, the primary operator of the automobile, and the son would be a substantial beneficiary of the attempted recovery, since the law does not permit one to profit from his own wrong.
APPEAL by plaintiff from Lyon, District Judge, at the 30 November 1970 Session of HARNETT District Court.
Bryan, Jones, Johnson, Hunter Greene by K. Edward Greene for plaintiff appellant.
Teague, Johnson, Patterson, Dilthey Clay by Paul L. Cranfill and Grady S. Patterson, Jr., for defendant appellee.
Judge MORRIS dissenting.
This action was instituted on 12 March 1962 by plaintiff's intestate to recover on a policy of insurance issued by defendant. The policy covered a 1960 model Corvair automobile which was destroyed by fire on or about 17 February 1961. Intestate died in 1963 and his administrator was substituted as plaintiff.
The case was heard on an agreed statement of facts, summarized in pertinent part as follows: On 30 August 1960, defendant issued to plaintiff's intestate its policy of insurance #96-75209 covering a described automobile belonging to intestate. Bobby Pleasant (Bobby), son of intestate, at all times pertinent to this action lived in the home with his parents and a brother and sister. Although the brother and sister occasionally operated the subject automobile, as did intestate, Bobby was the primary operator thereof. On 17 February 1961, Bobby and three of his friends conspired together to burn the automobile; they intentionally destroyed the automobile by burning, in an effort to obtain a new convertible automobile with the insurance money Bobby thought would be collected. Bobby was convicted in criminal court of burning the car. Damages resulting from the burning amounted to $1900.
The district court found facts as submitted and concluded that plaintiff was not entitled to recover. From judgment that plaintiff recover nothing, he appealed.
The policy of insurance involved in this action obligated defendant to pay for loss to the automobile caused, among other things, by fire or lightning. The word "loss" is specifically defined in the policy under the section entitled "Definitions" as follows: "loss means direct and accidental loss of or damage to (a) the automobile, including its equipment or (b) other insured property." The policy defines the word "insured" to include a person ". . . using or having custody of said automobile with the permission of the named insured." Defendant contends that destruction of the automobile was not accidental but resulted from the intentional act of intestate's son, an insured who was the primary operator of the automobile.
We do not deem it necessary to decide the questions posed by defendant's contentions. Suffice to say, we hold that under the facts presented the public policy of this State prevents a recovery.
Our research fails to reveal that this court or our Supreme Court has passed upon a case similar to the case at bar, but we think a proper analogy can be drawn from the cases hereinafter reviewed.
The law does not permit one to profit by his own fraud or take advantage of his own wrong. 1 Am. Jur.2d, Actions, 51, p. 583. In Byers v. Byers, 223 N.C. 85, 25 S.E.2d 466 (1943), opinion by Stacy, C.J., it is said: "One in flagrante delicto is not permitted to recover in the courts. The courts are open for the determination of rights and the redress of grievances, but not for the rewarding of wrongs. To `do justly' and to `render to each one his due,' . . ., are the first commands of the law."
In Davenport v. Patrick, 227 N.C. 686, 44 S.E.2d 203 (1947), Denny, J., (later C.J.) said: "Public policy in this jurisdiction, buttressed by the uniform decisions of this Court, will not permit a wrongdoer to enrich himself as a result of his own misconduct." In that case, an administrator instituted an action for wrongful death against intestate's husband upon allegations that the husband's negligence caused the death of intestate. Intestate left no children. The court held that the husband being the sole beneficiary of any recovery that it would look beyond the nominal party plaintiff and not allow any recovery.
In Insulation Company v. Davidson County, 243 N.C. 252, 90 S.E.2d 496 (1955), plaintiff corporation, whose secretary-treasurer and substantial stockholder was chairman of defendant's board of commissioners, brought suit to recover for insulation work performed on certain county buildings. The question on appeal was whether plaintiff was entitled to recover on a quantum meruit basis. In answering the question in the negative the court, speaking through Barnhill, C.J., said: "No man ought to be heard in any court of justice who seeks to reap the benefits of a transaction which is founded on or arises out of criminal misconduct and which is in direct contravention of the public policy of the State (Citations)."
In re Estate of Ives, 248 N.C. 176, 102 S.E.2d 807 (1958), opinion by Parker, J., (later C.J.) the court held that the common law maxim that a person will not be allowed to take advantage of his own wrong has been adopted as public policy in this State; and the right of a person to share in the distribution of recovery in an action for wrongful death will be denied where the death of the decedent is caused by such person's negligence.
Although Bobby is not the plaintiff in the instant case, the record indicates that he would be a substantial beneficiary of the attempted recovery, thereby profiting from his own wrong. We think the benefits that would accrue to him are sufficient to invoke the doctrine above discussed and prevent any recovery in the action.
For the reasons stated, the judgment appealed from is
Affirmed.
Judge PARKER concurs.
Judge MORRIS dissents.