Emery v. Lititz Mutual Insurance

46 S.E.2d 309, 228 N.C. 532, 1948 N.C. LEXIS 261

• Court: Supreme Court of North Carolina
• Decided: February 25, 1948
• Status: Published

Opinion

Stacy, C. J.

Tbe appellant seeks to pose tbe question whether nonsuit is proper on plea of avoidance when plaintiff’s own evidence shows no liability to him under tbe policy in suit. Alspaugh v. Ins. Co., 121 N. C., 290, 28 S. E., 415.

A careful perusal of tbe record leaves us with tbe impression that it falls short of presenting tbe question. At most, tbe plaintiff’s testimony is equivocal on the issue of avoidance, or increased hazard within the meaning of tbe policy. Tbis carries tbe case to the jury. Shell v. Rose-man, 155 N. C., 90, 71 S. E., 86. Discrepancies and contradictions, even in plaintiff's evidence, are for the twelve and not for the court. Bank v. Ins. Co., 223 N. C., 390, 26 S. E. (2d), 862. The equivocation in plaintiff's testimony affected his credibility, but did not work a dismissal of the action. Ward v. Smith, 223 N. C., 141, 25 S. E. (2d), 463. Counsel for the defendant, no doubt, made full use of this equivocation in his argument.

Moreover, the mortgagee, who is also a plaintiff and interested by virtue of the loss-payable clause in the policy, may stand in an even stronger position than the owner on the motion to nonsuit. But we do not reach this point.

In the absence of the charge, which is not sent up, it is presumed the jury was properly instructed, both in respect of the evidence and the law arising thereon. S. v. Hargrove, 216 N. C., 570, 5 S. E. (2d), 852; S. v. Jones, 182 N. C., 781, 108 S. E., 376.

On the record as presented, the motion to' nonsuit was properly overruled. The appeal is limited to this one question.

No error.