Hincher v. HOSPITAL CARE ASSOCIATION

103 S.E.2d 457 (1958)

248 N.C. 397

D. J. HINCHER v. The HOSPITAL CARE ASSOCIATION, Inc.

No. 384.

Supreme Court of North Carolina.

May 21, 1958.

Claude V. Jones, Durham, for appellant.

W. H. McElwee and W. L. Osteen, North Wilkesboro, for appellee.

JOHNSON, Justice.

The defendant's chief assignments of error challenge the rulings of the trial court in denying its motion for judgment as of nonsuit and in refusing to give the jury the peremptory instruction as requested by the defendant.

"Defendant's evidence which is not at variance with plaintiff's evidence but which tends to explain and clarify it, may be considered on motion to nonsuit." Robbins v. Crawford, 246 N.C. 622, 99 S.E.2d 852, 856. See also Nance v. Hitch, 238 N.C. 1, 76 S.E.2d 461, 41 A.L.R.2d 318, and cases there cited.

It is also established by our decisions that, "When the plaintiff offers evidence sufficient to constitute a prima facie case in an action in which the defendant has set up an affirmative defense, and the evidence of the plaintiff establishes the truth of the affirmative defense as a matter of law, a judgment of nonsuit may be entered." See also Thomas-Yelverton Co. v. State Capital Life Ins. Co., 238 N.C. 278, 77 S.E.2d 692, 694; Goldberg v. United Life Ins. Co., 248 N.C. 86, 102 S.E.2d 521.

In the instant case it is apparent that various phases of the testimony of Dr. Warner, given as a witness for the defendant, harmonize with and tend to explain and clarify the plaintiff's testimony, without in any manner contradicting it. And when the plaintiff's testimony is considered in connection with the clarifying phases of the defendant's evidence, it is manifest that the defendant's affirmative defense is established as a matter of law by the plaintiff's evidence. We conclude, therefore, that the ruling of the trial court in denying the defendant's motion for judgment as of nonsuit must be held for error and reversed. This being so, it is not necessary to discuss at length the question whether the court also erred in denying the defendant's request for a peremptory instruction. Ordinarily, where all the evidence bearing upon an issue points in the same direction, with but one inference to be drawn from it, an instruction to find in support of such inference, if the evidence is found to be true, is proper. Commercial *462 Solvents, Inc., v. Johnson, 235 N.C. 237, 243, 69 S.E.2d 716, 721. Here it is manifest that the defendant was entitled to a peremptory instruction. For correct form of instruction, see City of Shelby v. Lackey, 236 N.C. 369, 72 S.E.2d 757; Peek v. Wachovia Bank & Trust Co., 242 N.C. 1, 11, 86 S.E.2d 745, 753; Rhodes v. Raxter, 242 N.C. 206, 210, 87 S.E.2d 265, 268; Commercial Solvents v. Johnson, supra.

The judgment below will be

Reversed.