Griffin v. Hartford Accident and Indemnity Co.

144 S.E.2d 201 (1965)

265 N.C. 443

Rebecca GRIFFIN, b/n/f Charleen Greene v. HARTFORD ACCIDENT AND INDEMNITY COMPANY.

No. 206.

Supreme Court of North Carolina.

October 13, 1965.

*202 Horace M. DuBose, III, Gastonia, for plaintiff appellant.

J. Donnell Lassiter and Kennedy, Covington, Lobdell & Hickman, Charlotte, for defendant appellee.

PER CURIAM.

The evidence offered by the plaintiff, taken to be true and interpreted in the light most favorable to her, as it must be upon a motion for judgment as of nonsuit, shows that the defendant issued to Mildred Sadler its policy of automobile liability insurance, which, unless properly cancelled, was in effect at the time of the accident out of which the plaintiff's judgment against Mildred Sadler arose. Thereby the defendant company contracted "To pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of bodily injury * * * sustained by any person, caused by accident and arising out of the ownership * * * or use of the automobile." It *203 further shows, when so taken, that the plaintiff obtained judgment against Mildred Sadler in the amount of $3,500, plus costs, by reason of such liability, that execution issued thereon and was returned unsatisfied by reason of her insolvency. Nothing else appearing, the plaintiff would be entitled to judgment against the defendant for the amount now due her upon the said judgment. Crisp v. State Farm Mutual Automobile Insurance Co., 256 N.C. 408, 124 S.E.2d 149; Hall v. Harleysville Mutual Casualty Co., 233 N.C. 339, 64 S.E.2d 160; Strong, N.C. Index, Insurance, § 65.

Of course, cancellation of the policy at the request of the insured, either directly or through a duly authorized agent, prior to the occurrence of the accident in which the plaintiff was injured, would bar recovery by the plaintiff in this action. However, cancellation of the policy is an affirmative defense and the burden is upon the defendant to prove a valid cancellation effective before the liability of the insured arose. Crisp v. State Farm Mutual Automobile Insurance Co., supra.

A judgment of nonsuit may not properly be entered on the ground of a defense, the burden of proving which rests upon the defendant, unless the plaintiff's own evidence establishes it so clearly that no other reasonable conclusion can be drawn therefrom. The defendant's evidence may not be considered in passing upon its motion for such judgment, for its credibility is for the jury. Barnes v. Security Life & Trust Co., 229 N.C. 409, 50 S.E.2d 2. The plaintiff's evidence does not show cancellation of the policy. Therefore, the granting of the motion for judgment as of nonsuit was error and the plaintiff is entitled to a new trial.

The remaining assignments of error by the plaintiff are without merit and relate to matters decided on the former appeal. It is unnecessary to discuss them again. The power of attorney expressly authorizes the insurance company to rely upon the finance company's statement as to default by the policyholder in her payments to it.

Reversed.