Gibson v. Central Manufacturers' Mutual Insurance

*715 "WinboRNe, J. Defendant’s assignments of error based on exceptions to denial of its-motion, aptly made, for judgment as of nonsuit are not well taken. Defendant, baying (1) admitted tbe issuance of tbe policy of insurance on wbicb plaintiff bases bis action, and (2) set up in avoidance tbe defense tbat the issuance of tbe policy was procured by tbe false representations of plaintiff in tbe respects averred, bas tbe burden of proof on tbe issues thereby raised. Tbe burden of proof is on tbe party holding tbe affirmative. Wilson v. Casualty Co., 210 N.C. 585, 188 S.E. 102; In re Atkinson, 225 N.C. 526, 35 S.E. 2d 638. And judgment of nonsuit will not be granted in favor of one on wbom rests the burden of proof. Moreover, in the record on tbe appeal, there is no request for a directed verdict. But tbe first issue submitted to tbe jury in the trial court is, in tbe use of tbe term “and/or,” ambiguous and uncertain, and, hence, tbe verdict thereon is insufficient to support tbe judgment rendered. While defendant’s exception to the issues is general, and does not point to tbe use of tbe term “and/or” so used, its exception No. 21 to a portion of tbe charge does bring it into focus. Tbe following is tbe portion of tbe charge to wbicb this exception No. 21 relates: “If tbe defendant bas failed to satisfy you tbat tbe plaintiff falsely misrepresented to tbe defendant, in applying for tbe insurance policy, tbat such automobile was new and/or tbat be paid $2794.00 for the car, it would be your duty to answer tbe issue No.” Moreover, tbe exception to tbe judgment rendered raises tbe question .as to whether error in law appears upon tbe face of tbe record, Culbreth v. Britt, 231 N.C. 76, 56 S.E. 2d 15, and cases there cited. See also Greensboro v. Black, ante, 154; Hoover v. Crotts, ante, 617. Indeed, tbe .appeal itself is considered an exception to tbe judgment and any other matters appearing upon tbe face of tbe record. Dixon v. Osborne, 201 N.C. 489, 160 S.E. 579; Russos v. Bailey, 228 N.C. 783, 47 S.E. 2d 22, and numerous other cases. And tbe record, in tbe sense here used, refers to tbe essential parts of tbe record, such as tbe pleadings, verdict and judgment. See Thornton v. Brady, 100 N.C. 38, 5 S.E. 910, and citations •of it as shown in Shepard’s North Carolina Citations. And where error is manifest on tbe face of tbe record, even though it be not tbe subject of an exception, it is tbe duty of tbe Court to correct it, and it may do so of its own motion, tbat is ex mero moiu. G.S. 7-11, formerly C.S. 1412, Rev. 1542, Code 957, and R.C. Ch. 33, sec. 6. Thornton v. Brady, supra. Carter v. Rountree, 109 N.C. 29, 13 S.E. 716; S. v. Ashford, 120 N.C. 588, 26 S.E. 915; Appomattox Co. v. Buffaloe, 121 N.C. 37, 27 S.E. 999; S. v. Truesdale, 125 N.C. 696, 34 S.E. 646; Griffith v. Richmond, 126 N.C. 377, 35 S.E. 620; Wilson v. Lumber Co., 131 N.C. 163, 42 S.E. 565; Ullery v. Guthrie, 148 N.C. 417, 62 S.E. 552; Moreland v. Wamb *716 oldt, 208 N.C. 35, 179 S.E. 9; In re Will of Roediger, 209 N.C. 470, 184 S.E. 74; Smith v. Smith, 223 N.C. 433, 27 S.E. 2d 137. A judgment, in its ordinary acceptation, is the conclusion of tbe law upon facts admitted or in some way established, and, without the essential fact, the Court is not in a position to make final decision on the rights of the parties. Sedbury v. Express Co., 164 N.C. 363, 79 S.E. 288; Durham v. Hamilton, 181 N.C. 232, 106 S.E. 825, 30 Am. Jur. 821, Judgments, sec. 2. A judgment must be definite. 49 C.J.S. 51. And while a verdict is not a judgment, it is the basis on which a judgment may or may not be entered. 49 C.J.S. 28, Judgments 4. Hence a verdict should be certain and import a definite meaning free from ambiguity. Wood v. Jones, 198 N.C. 356, 151 S.E. 732. See also In re Will of Roediger, supra; Edge v. Feldspar Corp., 212 N.C. 246, 193 S.E. 2; Cody v. England, 216 N.C. 604, 5 S.E. 2d 833. In the Edge case, supra, the issue as framed was whether a certain provision was omitted from the deed in suit “by material mistake or by the fraud of the grantee.” The jury answered “yes.” And this Court held that the verdict is uncertain or ambiguous; that it is in the alternative; and that its inconclusiveness necessitated another trial. Compare S. v. Williams, 210 N.C. 159, 185 S.E. 661. Moreover, the use of the term “and/or” has not escaped the attention of this Court. Freeman v. Charlotte, 206 N.C. 913, 174 S.E. 453; S. v. Ingle, 214 N.C. 276, 199 S.E. 10; S. v. Mitchell, 217 N.C. 244, 7 S.E. 2d 567. In the Freeman case, supra, on appeal from an order restraining a special election, the Court, in affirming the order, had this to say: “It is observed that the approval of the State School Commission, as provided by Section 17, Chapter 562, Public Laws of 1933, nowhere-appears of record; and further that the use of words ‘and/or’ in said section adds nothing to its clarity if it does not create an ambiguity as to who shall request the tax levying authorities to call the election.” S. v. Ingle, supra, is an appeal by the State from a special verdict, finding defendant “not guilty” of the charge of “carrying on the Plumbing and/or Heating Contracting business, without having obtained a license to cany on the business of Plumbing and Heating Contracting in this State.” In finding no error, this Court said: “While there was no motion to quash the warrant, it may not be amiss to observe that it charges the defendant with ‘carrying on the Plumbing and/or Heating Contracting business’ — (citing cases). The use of ‘and/or’ in the warrant adds nothing to its clarity.” Citing Freeman v. Charlotte, supra. And in S. v. Mitchell, supra, reversing a special verdict finding defendant guilty “of practicing or offering to practice, entering into or carrying-on the plumbing and/or heating contracting business” the Court con- *717 eluded with the piercing question, “Of what crime does he stand convicted ?”, citing S. v. Ingle, supra. Thus the Court has inferentially condemned the use of the term “and/or” in statutes, and in verdicts in judicial proceedings. Moreover, the annotators of reported cases, and the text writers, indicate that much has been written in condemnation of the term “and/or.” It is declared, in effect, that the courts generally hold that the term “and/or” has no place in judicial proceedings, — pleadings, verdict or judgment. See Annotations 118 A.L.E. 1367, and 154 A.L.B. 866, on subject “And/or”; also, 3 C.J.S. 1069, and Words and Phrases, Perm. Ed. 3, p. 450. In fine, issues should be couched in words of clear and certain meaning. For error indicated, let there be a New trial. JohnsoN, J., took no part in the consideration or decision of this case.