#### GRESHAM PETROLEUM TRANSPORT, INC., v. KEYSTONE MUTUAL CASUALTY CO.

(Filed 5 November, 1947.)

1. Insurance § 9—

An endorsement on a policy of insurance made by the local agent without the knowledge of the insurer and placed on the policy after the happening of the event upon which liability is predicated, can be no part of the insurance contract and in no way binds insurer.

2. Insurance § 43—

A policy describing a trailer covered by the contract by make and year but without serial number is a sufficient description to permit evidence *aliunde*that the trailer involved in the accident was the only one of that description owned and operated by insured at the time the policy was issued so as to identify the trailer as the one covered by the contract.

Defendant’s appeal from *Harris, J.,*at February Civil Term, 1947, of Wake.

The plaintiff brought this action to recover of the defendant on a policy of insurance issued by it to the plaintiff, covering, as plaintiff alleges, certain expenditures the latter was compelled to make in the defense of a civil action based upon negligence, in which an insured tank trailer was involved. It is alleged that this particular tank trailer was .insured by the defendant in such manner that the latter agreed to defend the plaintiff in any suit brought, based upon negligence or accident attributable to plaintiff in the use of said trailer, and to pay any recovery in the said suit.

A frank statement by the parties to the action, sharply outlining the crux of the controversy, renders unnecessary a more tedious statement of detail.

Briefly, the facts are these :

The plaintiff was sued for negligence in causing a fire near the Sir Walter Hotel on 29 January, 1946, by leakage of oil from a tank trailer owned and operated by it, whereby it was permitted to run freely in the street or alley, to become ignited and thereby cause damage to the property of the plaintiff in that suit.

*145Tbe plaintiff in tbis action notified tbe defendant of tbe institution of tbe action against it and called upon tbe defendant to defend tbe case in accordance witb its contract. Tbe defendant company declined to defend tbe action or to pay tbe expenses thereof, or any judgment recovered in tbe action, and disclaimed any liability thereupon. Tbe plaintiff (defendant in that suit) defended tbe action, paid items of cost and attorney’s fees, and tbe judgment which was obtained against it in said action, all in tbe amount of $722.10.

In tbe instant case defendant does not dispute tbe expenditures of plaintiff or tbe liability of tbe defendant therefor, provided tbe policy sued upon covers tbe identical tank trailer in question; but it denies such coverage. Tbis is tbe only point in controversy.

A few days after tbe fire tbe owner of tbe tank trailer in question, described as a “1943 Butler tank trailer,” procured from tbe local agent of tbe defendant a special endorsement, bearing tbe date of tbe original policy, in which tbe serial number of tbe particular trailer involved in tbe fire was definitely stated to be “43101630K,” which was in fact tbe serial number of tbe trailer in question.

Tbe contention of tbe defendant is that tbe defendant company bad issued to tbe plaintiff a policy, under date of December 20, 1945, in which is described on tbe face of tbe policy a 1945 Federal tractor (not involved in tbe controversy) and a 1943 Butler tank trailer, and that there is no serial number listed on tbe policy witb respect to tbis trailer; and further, that there is in evidence a policy of tbe Massachusetts Bonding & Insurance Company, dated August 10, 1945, and expiring August 10, 1946 (now transferred to defendant), tbe insured being S. D.Gresham, Sr., and there is listed in tbe vehicles covered in tbis policy a 1944 Butler semi-trailer and tank, serial number 43101630K, being tbe same serial number as that upon tbe plaintiff’s trailer involved in tbe fire. In addition to tbis there is listed tbe 1943 trailer which plaintiff contended bad been wrecked and was a total loss at tbe time tbe policy sued upon was issued. In fact tbe 1943 trailer which bad been wrecked never, indeed, belonged to tbe plaintiff but was operated by Gresham before plaintiff took over tbe business, and that tbe trailer involved in tbe fire was tbe only one owned by tbe plaintiff at tbe time defendant issued its policy thereupon.

Tbis particular situation, necessarily somewhat confused in its statement, amounts to tbis: Tbe plaintiff contended that tbe policy of insurance covered tbe 1943 Butler tank trailer which was then in use and not tbe one formerly operated by it, and which bad become a total wreck at tbe time tbe policy was issued. Tbe defendant makes these contentions. Tbe first is that it was impossible to say from tbe contract which of these trucks bad been insured and that the description in tbe original policy was insufficient to identify tbe trailer; and second, that tbe special *146endorsement giving the serial number of tbe truck involved in the lire is of no effect as a contract of insurance, both because it was made after the liability had already matured, and was made without the knowledge of- the company.

Upon the trial the plaintiff was permitted, over exception of the defendant, to introduce evidence as to the identity of the 1943 Butler tank trailer, consisting mainly of testimony that it was the only trailer of that description owned and operated by him at the time which might be made the subject of insurance at all.

Also, the plaintiff was permitted, over objection of the defendant, to introduce certain parts of the complaint to which the answers introduced were directed.

. At the conclusion of the evidence the defendant demurred thereto and moved for judgment as of nonsuit, which was declined and defendant excepted.

Certain exceptions to the charge as given were also made, but it is not thought necessary to decision to treat them in detail.

The ease was submitted to the jury and 'resulted in a verdict for the plaintiff. From the ensuing judgment the defendant appealed, assigning errors.

*Bunn Arendell for plaintiff, appellee.*

*Ehringhaus & Ehringhaus for liquidator of defendant, appellant.*

Sea well, J.

Careful examination of the objections to the admission of evidence and the charge to the jury does not, in the opinion of the Court, disclose reversible error. The controversy narrows to two points : The effect of the “special endorsement” on the original policy covering the “1943 Butler tank trailer” and giving the more particular description by serial number, made after the fire in which plaintiff’s trailer was involved and upon which liability was predicated; and, supposing that endorsement to be ineffective, whether the description “1943 Butler tank trailer” in connection with the Reo trailer insured also by plaintiff, is a sufficient description.

As to the first question it seems clear that the special endorsement made after the liability on the policy, if any, had matured, or at least the negligence or accident upon which it was predicated had become a *fait accompli,*can be no part of a contract of insurance, since such a contract is prospective in its nature, and, of course, is based upon actuarial experience; and, equally of course, our statute does not recognize any such departure from its standard form of policy. Considered as a stipulation affecting a past transaction, or a compromise of a disputed liability, oí-an admission, it not only lacks supporting circumstances which would qualify it in any of these respects, but we doubt whether the local agent *147might have authority to bind the company in that way by such endorsement.

We need not decide this, however, since we are convinced that thé description in the original policy is sufficient to identify the trailer which the defendant insured in the policy sued upon, and that evidence to explain the ambiguity pointed out by the defendant was properly admitted. *Montgomery v. Ring,*186 N. C., 403, 119 S. E., 561; *Porter v. Construction Co.,*195 N. C., 328, 142 S. E., 27.

In the record we. find

No error.