Williams v. PYRAMID LIFE INSURANCE COMPANY

163 S.E.2d 400 (1968)

2 N.C. App. 520

Corine S. WILLIAMS v. PYRAMID LIFE INSURANCE COMPANY.

No. 6811SC397.

Court of Appeals of North Carolina.

October 9, 1968.

*402 Morgan & Jones, by R. H. Jones, Lillington, for plaintiff appellant.

Cansler & Lockhart, Charlotte, and Bryan, Bryan & Johnson, by J. Shepard Bryan, Dunn, for defendant appellee.

BRITT, Judge.

The question presented by this appeal is whether the evidence offered by plaintiff, when viewed in the light most favorable to her, established a prima facie case of coverage under the policy, requiring submission to the jury. We are impelled to answer in the negative.

Where the language of a policy is clear and unambiguous, the courts must give the language used its plain, natural, and obvious meaning. Setzer v. Pyramid Life Insurance Co., 258 N.C. 66, 127 S.E.2d 783.

In order to establish a prima facie case in this action, it was necessary for plaintiff to prove the existence of the policy sued on, death of the insured under conditions covered by the policy and required notice to the insurer. The burden then would have been upon the defendant to prove the existence of factors excluding the insured from coverage. Langley v. Durham Life Insurance Co., 261 N.C. 459, 135 S.E.2d 38; Kirk v. Nationwide Mutual Insurance Co., 254 N.C. 651, 119 S.E.2d 645; Slaughter v. State Capital Life Insurance Co., 250 N.C. 265, 108 S.E.2d 438; Fallins v. Durham Life Insurance Co., 247 N.C. 72, 100 S.E.2d 214.

When the plaintiff fails to show coverage under the insuring clause or establishes an exclusion while making out his prima facie case, nonsuit is proper. Setzer v. Pryamid Life Insurance Co., supra; Kirk v. Nationwide Mutual Insurance Co., supra; Slaughter v. State Capital Life Insurance Co., supra.

Here, plaintiff established the existence of the policy, death of the insured and due notice; however, plaintiff failed to offer any evidence tending to show that the deceased, at the time of the accident, was "riding in or on a motor driven or animal-drawn farm machine (including farm tractor) or farm implement of a type designed to be ridden upon while in use." This is the insuring clause, and there must be some evidence placing the accident within its terms. The fact that the switch was found turned on tends neither to prove or disprove that the deceased fell from the tractor. He could just as easily have been attempting to unclog the baler. There was no evidence as to the position of the gears on the tractor which would have been some evidence of whether the deceased was "in or on the vehicle" at the time of the accident.

To permit this case to go to a jury was to permit the jury to speculate as to whether the accident occurred within the insuring clause or within the exclusion.

The judgment of the Superior Court reversing the judgment entered in the Harnett County Recorder's Court and dismissing the action is

Affirmed.

BROCK and PARKER, JJ., concur.