White v. Dixie Fire Insurance

Winborne, J. Appellant contends that there is error in the judgment from which this appeal is taken in the refusal of the court (1) to sustain the motion for judgment as in case of nonsuit, and (2) to give peremptory instruction in favor of defendant on the issue as to cancellation. After full and careful consideration of the evidence shown in the record of the case on appeal we are unable to agree with these contentions. I. Appellant predicates its first contention upon two grounds : First: Upon the theory that having introduced in evidence, without restriction or limit in purpose, the letter from the Suffolk agency in which it is stated that it was enclosing check covering return premium “By reason of this policy having been cancelled as of January 15, 1945,” and the letter from the assistant secretary of defendant in which it is stated that *124 “this policy was effectively cancelled by notice addressed to Mr. L. G. White . . . ,” as shown in the foregoing statement of facts, which are uncontroverted, plaintiff is bound by them. In support of this contention defendant relies upon the principle enunciated in S. v. Fulcher, 184 N. C., 663, 113 S. E., 769; S. v. Cohoon, 206 N. C., 388, 174 S. E., 91; S. v. Todd, 222 N. C., 346, 23 S. E. (2d), 47; S. v. McNeill, 225 N. C., 560, 35 S. E. (2d), 629, and others of like import, to the effect that when a complete defense is established by the State’s or plaintiff’s evidence, a defendant should be allowed to avail himself of such defense on a motion for judgment as of nonsuit. We are of opinion, however, that plaintiff’s evidence does not present a complete defense of cancellation of the policy as pleaded affirmatively by defendant. It shows no more than that defendant had stated in writing to plaintiff that there was a cancellation of the policy by mailing of notice. On the other hand, such statement is not the only evidence offered by plaintiff. There is evidence that no such notice had been received by him through the mails, and that there had been no return of premium before the plaintiff filed claim on account of damage to his automobile. These are circumstances bearing upon the weight of statements of defendant. If the notice had been mailed, it would ordinarily in the usual course of mails have been delivered to plaintiff. Since there is evidence that it was not so delivered, it is a question for the jury to say, under all the circumstances in evidence, whether the notice was in fact mailed. Compare Trust Co. v. Bank, 166 N. C., 112, 81 S. E., 1074, and Eagles v. R. R., 184 N. C., 66, 113 S. E., 512. In the Trust Company case it is said: “When it is shown that a letter has been ‘mailed,’ this establishes prima facie that it was received by the addressee in the usual course of the mails and his business, and when the latter introduces evidence that it was not in fact received, or, not received at the time alleged, such testimony simply 'raises a conflict of evidence, on which it is the exclusive province of the jury to pass.” Appellant next contends that even if it be not entitled to judgment as of nonsuit on plaintiff’s evidence, the testimony of the witness M. L. Martin is not contradicted and is not in conflict with plaintiff’s evidence, and hence its motion for judgment as of nonsuit at the close of all the evidence should have been granted. As to this, what is said above as to the first contention is an appropriate answer. II. As to the refusal of the court to give the instruction to the jury as prayed: The theory of the trial below, as disclosed by the charge of the court, is that under the terms of the policy in question Dixie Fire Insurance Company had a right to cancel the policy at any time by simply mailing to plaintiff at the address given in the policy a written notice of cancellation to take effect in not less than five days and that *125 such mailing o£ notice would be sufficient proof of cancellation regardless of whether the plaintiff, as the insured, received the mailed notice. The court, in accordance with this declared theory, charged the jury that the burden on the first issue is on the defendant, through “its witnesses or plaintiff’s witnesses, or both” to show that notice of cancellation was mailed, that is, placed in the post office, properly stamped and addressed to plaintiff, and if the jury should find from the evidence and by its greater weight that defendant did so mail the notice of cancellation, it would be the duty of the jury to answer the first issue “Yes,” but if the jury does not so find, it will answer the issue “No.” Defendant, the appellant, takes no exception to the charge as given. Hence, we are not called upon to consider the correctness of principle involved in the theory of the trial, and we express no opinion as to it. It is sufficient to say in respect of the request for instruction that the burden of the first issue being upon the defendant, the weight to be given to its evidence, in the light of the attendant circumstances, is for the jury. And the charge of the court has presented the case to the jury in light favorable to defendant, and under such charge the jury has failed to accept defendant’s evidence. Hence, in the judgment on the verdict of the jury, we find No error.