Matthews v. Southern Fire Insurance

CoNNOR, J. There was evidence at the trial in the Superior Court tending to show that plaintiff’s automobile was stolen from the garage at his home, on State Highway No. 60, about seven miles from Clinton, the county-seat of Sampson County, during the month of October, 1925. Defendant, however, is not liable on its policy for the loss of the automobile, by theft, unless it was stolen prior to the expiration of its policy at noon, 20 October, 1925. A careful scrutiny of the evidence .set out in the case on appeal, in accordance with the rule applicable upon a motion for nonsuit, repeatedly stated and enforced by this Court, fails to disclose any evidence from which the jury could find that the automobile was stolen prior to noon, 20 October, 1925. There was evidence tending to show that plaintiff last saw his automobile on the night of 19 October, 1925, when he put it in his garage. He discovered its loss on the morning of 21 October, 1925. Whether it was stolen on the night of the 19th, during the day of the 20th, or on the night of the 20th of October, is left to conjecture. There was no evidence from which the jury could find the fact upon which plaintiff’s right to recover in this action is founded, to wit, that the automobile was stolen after plaintiff had put it in his garage, and prior to noon, 20 October, 1925. Dickerson v. R. R., 190 N. C., 292; Whittington v. Iron Co., 179 N. C., 649; Lewis v. Steamship Co., 132 N. C., 904. Defendant’s assignment of error, based upon its exception to the refusal of the court to dismiss the action as upon nonsuit, in accordance with its motion at the close of all the evidence, must be sustained. The judgment is Eeversed.