Ferrell v. Metropolitan Life Insurance

181 S.E. 327, 208 N.C. 420, 1935 N.C. LEXIS 433

• Court: Supreme Court of North Carolina
• Decided: September 18, 1935
• Status: Published

Opinion

OlaeKsoN, J.

At tbe close of plaintiff’s evidence, tbe defendant did not make a motion for judgment as in case of nonsuit. C. S., 567. Tbe record discloses “at tbe conclusion of all tbe testimony tbe Court, of its own volition, ordered that judgment of nonsuit be entered.”

In Nowell v. Basnight, 185 N. C., 142 (147), “The following may be considered as fairly interpretative of C. S., 567 . . . Time of making motion — It must be made first at the close of plaintiff’s evidence and before defendant introduces any evidence.” By the failure of defendant to follow strictly 0. S., 567, the question of the insufficiency of evidence is waived. Harrison v. Ins. Co., 207 N. C., 487 (490).

A nonsuit and dismissal under the Hinsdale Act has the same legal effect as a directed verdict, and where, in an action on a note, there is no evidence in contradiction of defendant’s evidence constituting a complete defense to the action, a judgment as of nonsuit will not be held for error, since the evidence would support a directed verdict in defendant’s favor, the court not weighing the evidence, but taking it to be true. Hood, Comr. of Banks, v. Bayless, 207 N. C., 82.

On the former appeal, 207 N. C., 51 (51-2), this Court said: “The plaintiff made out a prima facie case. The defendant offered evidence tending to show that the policy in suit lapsed for nonpayment of semiannual premium due 26 October, 1932. The credibility of defendant’s defense was challenged by plaintiff’s denial of assured’s signature to the written acknowledgement. This made it a case for the jury.”

In Power Co. v. Yount and Robinette v. Yount, ante, 182 (184), it is written: “ ‘A decision by the Supreme Oourt on a prior appeal constitutes the law of the case, both in subsequent proceedings in the trial court and on a subsequent appeal.’ Newbern v. Telegraph Co., 196 N. C., 14; Nobles v. Davenport, 185 N. C., 162.”

We do not set forth the evidence as the case is to be heard again. As stated in the former opinion, “This made it a case for the jury.”

The judgment of the court below is

Eeversed.