Hanes Funeral Home, Inc. v. Dixie Fire Insurance

Barnhill, J. That the policy of insurance was issued and was in full force and effect at the time of the damage to plaintiff’s car was admitted. The plaintiff offered evidence tending to show that the car was left in the garage at the home of its president; that subsequently it was found on the road between Greensboro and Siler City in a badly damaged condition, and that the damage thereto exceeded $1,000. The plaintiff then rested and the defendant moved to dismiss as of nonsuit,, which motion was overruled and the defendant excepted. The defendant then offered the testimony of L. H. Nelson, nephew of Mrs. Hanes, tending to show that he took the car for use on a trip to-Siler City and the circumstances under which he took it. Thereupon, the defendant renewed his motion to dismiss as of nonsuit, which was overruled and the defendant excepted. Was there error in the refusal of the court to dismiss the action as of nonsuit, on motion of the defendant, at the conclusion of all the evidence ? Theft is the felonious taking and removing of personal property with intent to deprive the rightful owner of it; larceny. Webster’s New International Dict. (2d). Larceny is the wrongful and fraudulent taking and carrying away by one person of the personal goods of another with the felonious intent to convert them to his, the taker’s, use, and make them his property without the consent of the owner. To consti *564 tute larceny tbe property must be taken and tbe taking must be under sueb circumstances as to amount technically to a trespass; there must be some asportation or carrying away of tbe property; and botb tbe taking and tbe carrying away must be with felonious intent — an intent to steal — existing at tbe time. Callahan’s Cyc. Law Dict. (2d). Tbe evidence of tbe plaintiff tending to sbow tbat its automobile, wbicb was left in a garage at tbe borne .of its president, was later found in tbe country between Greensboro and Siler City, standing alone and unexplained, might justify tbe inference tbat it was stolen. However, tbe circumstances of tbe taking are fully explained by tbe evidence of tbe defendant. This evidence is corroborated by testimony offered by tbe plaintiff' tbat after tbe wreck Nelson was in a hospital in Greensboro suffering from wounds received. Tbe explanatory evidence offered by tbe defendant is uncontradicted and unimpeacbed. It is well established in this jurisdiction tbat in considering tbe motion to dismiss as of nonsuit tbe evidence must be viewed in tbe light most favorable to tbe plaintiff. He is entitled to every reasonable intendment thereon and every reasonable inference therefrom, and tbe evidence of tbe defendant, unless favorable to tbe plaintiff, is not to be taken into consideration, except tbat when such evidence is not in conflict with tbe plaintiff’s testimony it may be used to explain or make clear tbat wbicb has been offered by tbe plaintiff. S. v. Fulcher, 184 N. C., 663, 113 S. E., 769; Harrison v. R. R., 194 N. C., 656, 140 S. E., 598; Hare v. Weil, 213 N. C., 484, 196 S. E., 869; Sellars v. Bank, 214 N. C., 300, 199 S. E., 266. Tbe testimony offered by tbe defendant did not tend to contradict or impeach tbe evidence of tbe plaintiff. It only served to amplify and explain tbe same and tended to affirm tbe inference to be drawn from tbe plaintiff’s evidence tbat tbe car bad been removed by someone other than an employee of tbe plaintiff. It is, therefore, a proper subject of consideration on tbe motion to nonsuit made at tbe conclusion of all tbe testimony. "When so considered tbe evidence fails to disclose any unlawful and felonious intent on tbe part of Nelson in taking and using tbe car, without wbicb there could be no theft. As to this there is a total failure of proof. But tbe plaintiff contends and earnestly insists that tbe conduct of Nelson constituted a violation of C. S., 4262, commonly referred to as tbe Temporary Larceny Statute. If we concede tbat tbe policy of insurance against theft includes and embraces statutory larceny such as is defined by this section of the Code, it will not avail tbe plaintiff. To constitute this offense it must likewise appear tbat tbe taking was not only secretly and against tbe will of tbe owner of tbe property but tbat it was also with an unlawful and felonious intent, for a felonious *565 intent is an essential element of larceny, as defined in tbis statute, as well as at common law. There was error in tbe refusal of tbe court below to grant tbe motion of tbe defendant to dismiss tbe action as of nonsuit at tbe conclusion of all tbe evidence. Reversed.