Polansky v. Millers' Mutual Fire Insurance

Parker, J. 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. Gr.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. Lumberton, 235 N.C. 227, 69 S.E. 2d 543; Whitley v. Jones, ante, 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 1 the car resulted from mechanical breakdown or failure. *431 Tbe defendant contends tbat to avoid a nonsuit tbe plaintiff must offer evidence tbat bis loss comes within tbe provisions of tbe insurance policy and is not excluded by any of the exceptions in the policy. Tbe defendant alleges in its answer as an affirmative defense tbat plaintiff’s loss was caused by wear and tear or mechanical or electrical breakdown or failure, and is excluded under tbe provisions of tbe insurance policy. It is generally held tbat tbe burden is on tbe insurer to show tbat 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. Casualty Co., 229 N.C. 305, 49 S.E. 2d 742, tbe lower court nonsuited tbe plaintiff based upon an affirmative defense set up by tbe defendant. In reversing tbe lower court, we said “tbe general rule is tbat the party who seeks to avoid liability by interposing an affirmative plea assumes tbe burden of proving his allegation by competent evidence before tbe jury” (citing authorities). To tbe same effect Williams v. Ins. Co., 212 N.C. 516, 193 S.E. 728, and Wilson v. Casualty Co., 210 N.C. 585, 188 S.E. 102. See also Wells v. Clayton, 236 N.C. 102, 72 S.E. 2d 16. Tbe defendant relies upon General Exchange Ins. Corp. v. Bolles (Court of Civil Appeals of Texas), 143 S.W. 2d 635, and other Texas cases. Whatever may be tbe law in Texas, our cases bold otherwise. It also relies on Trust Co. v. Casualty Co., 231 N.C. 510, 57 S.E. 2d 809. On tbe facts tbat case is not in point. Tbe defendant further contends on bis 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. Tbe evidence of tbe defendant explains and clarifies tbe evidence of tbe plaintiff to this effect.” Tbe insurance policy insures tbe plaintiff against direct and accidental loss to bis automobile caused by fire or explosion. In making this contention tbe defendant does not heed tbe definition of tbe word “accidental.” In Kirkley v. Ins. Co., 232 N.C. 292, 59 S.E. 2d 629, there was an insurance policy containing tbe exact words-of tbe policy in this case as to comprehensive loss or damage except by collision or upset, as set forth in “1 Coverage A.” In tbat case this Court said “accidental” is defined in Black’s Law Dictionary, 3rd, Ed., p. 23, as “an unforeseen event, occurring without tbe will or design of tbe person whose mere act caused it; an unexpected, unusual, or undesigned occurrence; tbe effect of an unknown cause, or, tbe cause being known, an unprecedented consequence of it; a casualty.” The trial court would not have been justified in nonsuiting the plaintiff upon tbe evidence of the defendant who has made an affirmative-defense with respect to which tbe burden of proof rests upon him. Tbe *432 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 S. 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.