Polansky v. MILLERS'MUT. FIRE INS. ASS'N

78 S.E.2d 213 (1953)

238 N.C. 427

POLANSKY v. MILLERS' MUT. FIRE INS. ASS'N OF ILLINOIS.

No. 112.

Supreme Court of North Carolina.

October 21, 1953.

*215 Gudger, Elmore & Martin, Asheville, for defendant-appellant.

Uzzell & DuMont, Asheville, for plaintiff-appellee.

PARKER, Justice.

The defendant assigns as Errors Nos. 4 and 5 the trial court's denying its motion for judgment of nonsuit made at the close of the plaintiff's evidence, and renewed at the close of all the evidence. G.S. § 1-183.

In passing upon such a motion it is well-settled law that the plaintiff's evidence is taken as true, and given every reasonable inference in favor of the plaintiff; the defendant's evidence, unless favorable to the plaintiff, is not considered, except when not in conflict with plaintiff's evidence, it may be used to explain or make clear that which has been offered by the plaintiff. Rice v. City of Lumberton, 235 N.C. 227, 69 S.E.2d 543; Whitley v. Jones, 238 N.C. 332, 78 S.E.2d 147.

The plaintiff's evidence, taken as true, establishes fire, smoke and an explosion causing damage to the automobile. The defendant's evidence tended to show that no fire or explosion occurred, and that the damage to the car resulted from mechanical breakdown or failure.

The defendant contends that to avoid a nonsuit the plaintiff must offer evidence that his loss comes within the provisions of the insurance policy and is not excluded by any of the exceptions in the policy. The defendant alleges in its answer as an affirmative defense that plaintiff's loss was caused by wear and tear or mechanical or electrical breakdown or failure, and is excluded under the provisions of the insurance policy.

It is generally held that the burden is on the insurer to show that damages claimed fall within an exception of loss by explosion. 29 Am.Jur., Insurance, p. 1086; German American Ins. Co. v. Hyman, 42 Colo. 156, 94 P. 27, 16 L.R.A.,N.S., 77.

In MacClure v. Accident & Casualty Co., 229 N.C. 305, 49 S.E.2d 742, 746, the lower court nonsuited the plaintiff based upon an affirmative defense set up by the defendant. In reversing the lower court, we said "the general rule is that the party who seeks to avoid liability by interposing an affirmative plea assumes the burden of proving his allegation by competent evidence before the jury." (Citing authorities.) *216 To the same effect Williams v. Philadelphia Life Ins. Co., 212 N.C. 516, 193 S.E. 728 and Wilson v. Inter-Ocean Casualty Co., 210 N.C. 585, 188 S.E. 102. See also Wells v. Clayton, 236 N.C. 102, 72 S.E.2d 16.

The defendant relies upon General Exchange Ins. Corp. v. Bolles, Tex.Civ.App., 143 S.W.2d 635 and other Texas cases. Whatever may be the law in Texas, our cases hold otherwise. It also relies on Peoples Bank & Trust Co. v. Fidelity & Casualty Co., 231 N.C. 510, 57 S.E.2d 809, 15 A.L.R.2d 996. On the facts that case is not in point.

The defendant further contends on his motion for nonsuit "standing alone, the plaintiff's evidence creates a mystery. No cause for the light, smoke and loud noise is given or can be inferred from plaintiff's testimony. The evidence of the defendant explains and clarifies the evidence of the plaintiff to this effect." The insurance policy insures the plaintiff against direct and accidental loss to his automobile caused by fire or explosion. In making this contention the defendant does not heed the definition of the word "accidental." In Kirkley v. Merrimack Mutual Fire Ins. Co., 232 N.C. 292, 59 S.E.2d 629, 631, there was an insurance policy containing the exact words of the policy in this case as to comprehensive loss or damage, except by collision or upset, as set forth in "1 Coverage A." In that case this Court said "accidental" is defined in Black's Law Dictionary, 3rd Ed., p. 23, as "an unforeseen event, occurring without the will or design of the person whose mere act caused it; an unexpected, unusual, or undesigned occurrence; the effect of an unknown cause, or, the cause being known an unprecedented consequence of it; a casualty."

The trial court would not have been justified in nonsuiting the plaintiff upon the evidence of the defendant who has made an affirmative defense with respect to which the burden of proof rests upon him. The court was correct in submitting the case to the jury, and assignments of errors Nos. 4 and 5 are without merit.

The only other assignments of errors discussed in defendant's brief are as to the court's charge. Assignments of errors Nos. 13 and 15 are to the court's placing the burden of proof of the second issue reading "If so, was said fire or explosion a result of wear and tear or mechanical or electrical breakdown or failure, as alleged in the defendant's further answer and defense?" on the defendant. For the reasons stated above those assignments of errors are not tenable.

The defendant's assignment of error No. 18 is to this part of the charge, "Mr. and Mrs. Polansky have testified in behalf of the plaintiff; Brown Motor Company, the insurer's adjuster and one of the employees of Brown Motor Company, have testified on behalf of the defendant. These witnesses, the court charges you, are interested in the outcome of your verdict, and because of the interest that they have in the outcome of your verdict the court charges you to scrutinize their testimony and that of each of them. The law says that the court shall do so." The defendant had three witnesses: C. Fred Brown, Jennings G. Featherstone and Merlin Adcock. C. Fred Brown sold this car to plaintiff in 1947. He has sold Packard cars for 20 years. Featherstone, a mechanic, works for the Brown Motor Company. Adcock was an insurance adjuster. Conceding, but not deciding, that Adcock was interested in the outcome of the verdict, the record is bare of any evidence that Brown Motor Company, or Brown or Featherstone was related to the plaintiff or in any legal respect interested. The statement that Brown and Featherstone were interested in the verdict likely proved hurtful to the defendant's defense, though not so intended by the able and experienced trial judge. It is one of the casualties of the circuit which happen at times to all trial judges.

Under our decision in State v. Dooley, 232 N.C. 311, 59 S.E.2d 808, and under the facts, we think that this assignment of error is good, and there should be another hearing. It is so ordered.

New trial.