Shearin v. National Indemnity Company

218 S.E.2d 207 (1975) 27 N.C. App. 88 Leon SHEARIN v. NATIONAL INDEMNITY COMPANY. No. 757SC224. Court of Appeals of North Carolina. October 1, 1975. *209 Biggs, Meadows, Batts & Winberry by Samuel W. Johnson, Rocky Mount, for plaintiff-appellee. Barden, Stith, McCotter & Stith by F. Blackwell Stith, New Bern, for defendant-appellant. PARKER, Judge. This appeal presents the question whether under the Constitution and laws of this State a summary judgment may be *210 granted in favor of the party having the burden of proof when his right to recover depends upon the credibility of his witnesses. On authority of Cutts v. Casey, 278 N.C. 390, 180 S.E.2d 297 (1971), we conclude that the answer is NO. G.S. 1A-1, Rule 56(a) clearly contemplates the possibility of granting a summary judgment in favor of a "party seeking to recover upon a claim, counterclaim, or crossclaim," and normally such a party has the burden of proof. Subsection (e) of Rule 56 also contains the following: "When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be entered against him." In the present case defendant did not respond by affidavit or otherwise to plaintiff's motion for summary judgment but rested its defense entirely upon the allegations and denials contained in its answer. Therefore, were we at liberty to give full scope to Rule 56, we would agree with the trial court in the present case that, upon the basis of plaintiff's uncontradicted affidavits, there is here no genuine issue as to any material fact. We would further agree with the trial court's conclusion of law that, under the facts as disclosed by plaintiff's affidavits and as to which no genuine issue has been shown to exist, plaintiff is entitled to recover under the policy of insurance issued to him by the defendant. In Cutts v. Casey, supra, our Supreme Court held, citing Article I, § 25 of the Constitution of North Carolina, that a trial judge in this State may not direct a verdict under Rule 50 in favor of the party having the burden of proof when his right to recover depends upon the credibility of his witnesses. We are unable to see why the principle announced in Cutts v. Casey does not apply with at least equal force when the question is presented by a motion for summary judgment under Rule 56. That both parties in the present case moved for summary judgment does not change the situation. A defendant may contend that if his legal theory of the case be accepted, no genuine issue of fact exists, and at the same time may also legitimately contend that if his opponent's legal theory be adopted, a genuine dispute as to a material fact does exist. Because we deem Cutts v. Casey controlling, the summary judgment in favor of the plaintiff is reversed and this cause is remanded for trial. Reversed and remanded. BRITT, J., concurs. VAUGHN, J., dissents. VAUGHN, Judge (dissenting): I concur with the majority in the view that, on the undisputed facts in this case, plaintiff is entitled to judgment on the liability issue as a matter of law. Except for the decision in Cutts v. Casey, it would have been my opinion that, if the same evidentiary matters before the judge on this motion for summary judgment had stood uncontradicted as the only evidence before a court on a motion for directed verdict, it would be one of those rare cases where a directed verdict in favor of the party with the burden of proof would have been proper. [It must be noted that the evidence in Cutts v. Casey was conflicting and, therefore, it would have been error to direct a verdict in favor of either party.] In any event, I do not agree that the rule announced in Cutts v. Casey, which appears to proscribe a directed verdict in favor of a party with the burden of proof, compels the same decision when that party moves for summary judgment, even where the evidentiary matters on the motions are identical. Although a part of the same struggle, the *211 motions come at different stages of the conflict. The statutes place specific responsibilities on the parties at each encounter and, by his inaction at one, a party may lose the shield that would otherwise be available for the next. Before the directed verdict question can arise, a party must, of necessity, have theretofore preserved his right to contest an issue at trial. He has done this at the pleading stage of the conflict by, among other things, refuting the allegations of the complaint by answer or other pleadings. If defendant here had ignored the complaint and failed to respond, he could have lost his right to have the jury pass on the issue of liability. The struggle then moved on to the summary judgment arena. Plaintiff supported his attack with affidavits showing that the loss of his aircraft was within the scope of the coverage insured by defendant and, therefore, that there were no issues of fact with respect to liability. Defendant then abandoned the field. It did not attempt to refute these affidavits with either a denial of their truthfulness, an indication that there were other facts which would keep the defense of nonliability alive or any reason why it could not then present facts essential to justify its opposition to the motion. To me, Rule 56 contemplates that this inaction may result in forfeiture of any right to dispute the facts at a later stage of the conflict just as would have resulted from defendant's failure to deny at the pleading stage. In either event defendant must be said to have retreated when the statutes required him to attack in order to keep a factual controversy alive for resolution at trial. Since there was no factual controversy, only a question of law remained. I would affirm the judgment.