Daves v. Union Mutual Insurance

MORRIS, J. The defendant’s sole contention is that the trial judge should have allowed its motion for nonsuit. Its argument is based on two contentions: one, that the plaintiffs did not comply with the terms of the policy in that they did not file written notice or a sworn proof of loss; and, two, that its uncontradicted evidence shows that the policy of insurance was canceled as of 2 December 1965. Perhaps the rule of law most often stated in North Carolina is that “On a motion to nonsuit, plaintiff’s evidence is to be taken as true, and all the evidence must be considered in the light most favorable to plaintiff, giving him the benefit of every fact and inference of fact pertaining to the issues, which may be reasonably deduced from the evidence. Contradictions, even in plaintiff’s evidence, must be resolved in his favor.” 7 Strong, N. C. Index 2d, Trial, § 21, p. 294. Defendant’s evidence which tends to impeach or contradict the plaintiff’s evidence is not to be considered and defendant’s evidence is to be considered only to the extent that it is not in conflict with the plaintiff’s evidence and tends to make clear or explain plaintiff’s evidence. 7 Strong, N. C. Index 2d, Trial, § 21. The defendant argues that since its evidence showing that the notice of cancellation was properly mailed was uncontradicted, this should have been considered in passing on the motion for nonsuit. Defendant contends that evidence showing that the notice of cancellation was properly mailed raises the presumption that it was received and for this reason the motion for nonsuit should have been allowed. For this proposition the following is quoted in its brief: “. . . When the evidence shows that a letter has been committed to the post office or other depository from which letters are regularly delivered, properly stamped, and correctly addressed to the place of residence of the person for whom it is intended, it will be presumed that the sendee received the letter in the due course of mail. . . .” Eagles v. R. R., 184 N.C. 66, 113 S.E. 512. The above is clearly stated by the Supreme Court in the case cited. However, for its true meaning it must be read in context. The presumption is not conclusive as the defendant argues in his brief. In the sentence following the above quotation the Court quotes from an earlier North Carolina case: “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 re [87] ceived at the time alleged, such testimony simply raises a conflict of evidence, on which it is the exclusive province of the jury to pass.” Trust Co. v. Bank, 166 N.C. 112, 81 S.E. 1074. In the present case the evidence shows that the plaintiffs purchased a policy of insurance in August of 1966 which was to run for three years; that they did not receive the notice of cancellation; that they understood the “endorsement” which was received sometime in December of 1965 to mean that they owed an additional $9.87 on the policy. They stated that the local agent told them he would pay this as they were due a dividend on an old policy. The witness Sneeden stated that he had bought out the agency with which the plaintiffs dealt; that he received the plaintiffs’ file along with other records in this transaction and that he found no notice of cancellation in the file. He stated that ordinarily the local agent would receive such a notice. The defendant Company offered evidence that it had mailed the plaintiffs a notice of cancellation, and, in fact, the plaintiffs stipulated that such notice had been mailed. The defendant introduced a postal receipt which, as stipulated to by the plaintiffs, showed that the notice of cancellation had been mailed. This testimony raises a conflict of evidence. The motion for nonsuit was, therefore, properly denied. The defendant argues that the plaintiffs failed to file written notice of the loss and proof of loss as required by the policy. It is argued that the plaintiffs’ allegations do not raise the question of waiver, that they only raise the question of whether the defendant is estopped to raise these defenses, and that the evidence is insufficient to allow the question of estoppel to be submitted to the jury; therefore, because plaintiffs have not complied with the terms of the policy, nonsuit should have been granted. The pertinent allegations are as follows: “. . . plaintiffs allege that because of the actions on the part of the agents and employees of the defendant, that the defendant is estopped to plead lack of notice. That shortly after the fire, as alleged in the complaint, agents, servants and employees of the defendant contacted these plaintiffs and went to the site of the destroyed home, measured the size of the dwelling, took pictures of the destroyed home and requested the plaintiffs to furnish to the agent of the defendant in Brevard a list of the contents destroyed in said fire, and notified these plaintiffs that they would contact them again in the near future. That these replying plaintiffs took the list of contents to the agent in Brevard and were never thereafter contacted by [88] the defendant. That because of these actions on the part of the agents, servants and employees of the defendant, the defendant is estopped to plead lack of notice.” We feel that these allegations properly raised the question of waiver. 1 McIntosh, N. C. Practice 2d, § 999, p. 556, states: “The court will grant relief, either legal or equitable, according to the facts alleged and proved, though there be no formal prayer for relief, or though relief of another kind be demanded. The court has stated it thus: ‘In numerous and repeated decisions of this Court we have held that neither a particular form of statement nor a special prayer for relief should be allowed as determinative or controlling, but rights are declared and justice administered on the facts which are alleged and properly established.’ The statement found in some cases that ‘A complaint proceeding upon one theory will not authorize a recovery upon another and independent theory’ has no reference to the theory indicated in the prayer for relief, but merely prohibits invocation of a theory not supported by the facts alleged. That is, a party cannot recover upon a theory or cause of action not supported by the facts, regardless of the actual existence of other facts not alleged which he might have been able to prove. It is clear that upon demurrer for failure to state a cause of action, or upon motion for nonsuit, the theory of recovery is unimportant except to the extent that it must be determined that the facts alleged, or alleged and proved, justify recovery on some theory.” In Laughinghouse v. Insurance Co., 200 N.C. 434, 157 S.E. 131, the Court held that the issue of waiver should have been submitted to the jury although it was not expressly pleaded. The evidence taken in the light most favorable to the plaintiffs shows that they notified the defendant’s agent of the fire loss; that the defendant’s adjuster later visited the scene of the fire, took pictures, made measurements, and asked the plaintiffs to submit a list of the contents which were destroyed in the fire. The plaintiffs submitted this list as requested, and it was retained by the defendant without objection. The adjuster did not suggest to the plaintiffs that it was necessary to file a proof of loss, but returned, after his first visit, and advised the plaintiffs that the policy had been canceled. This position is completely inconsistent with the requirement of the filing of a proof of claim. The allegations and the evidence taken [89] in the light most favorable to the plaintiffs justify the submission of the issues of waiver and estoppel to the jury. The court charged the jury on waiver and estoppel, without objection or exception on the part of defendant, nor did defendant make any exception to the issue submitted. In the trial below there was no error. Affirmed. Mallaed, C.J., and Campbell, J., concur.