Cuthbertson v. North Carolina Home Ins. Co.

• Decision Date: 16 May 1887
• Citation: 96 N.C. 480,2 S.E. 258
• Court: North Carolina Supreme Court
• Parties: CUTHBERTSON v. NORTH CAROLINA HOME INS. CO.

96 N.C. 480

2 S.E. 258

CUTHBERTSON

v.NORTH CAROLINA HOME INS. CO.

Supreme Court of North Carolina.

May 16, 1887.

Appeal from superior court, Union county.

Covington & Adams, for plaintiff and appellant.

Burwell & Walker, for defendant.

DAVIS, J.

This was a civil action tried before AVERY, J., at May term, 1886, of Union superior court. On the seventeenth day of November, 1882, the defendant company for value insured certain property of the plaintiff against loss by fire for three months, beginning at 12 o'clock M. on that day, and issued to him a policy therefor in the sum of $1,000. On the night of February 16, 1883, while said policy was in force, a portion of the property embraced therein was destroyed by fire, worth, as plaintiff alleges, the sum of $1,000, which sum, though demanded, the defendant company refuses to pay, and this action is brought for its recovery. The application and policy of insurance are set out in the pleadings.

The defendant denies the right of the plaintiff to recover, and says that he did not have such an ownership of, or interest, title, and estate in, the property described in the policy as was represented by the plaintiff in his application. For a further defense the defendant says that the plaintiff in his application, which was a part of the contract, represented that he was the sole and absolute owner in fee of the property insured, and that there was no lien, incumbrance, or claim whatever against it, and that, in response to questions propounded, the plaintiff failed to disclose fully and truly his interest in said property, and that he was not the sole and absolute owner thereof. It is stipulated in the policy that, in the event of loss, suit or action for the recovery of any claim, by reason thereof, shall be commenced within one year, and the defendant says this action was not commenced within one year, as required by the said provision. The property is described in the policy, with value and insurance, respectively, as follows: Gin-house, value $250, insured for $108; 2 gins and one feeder, $350, $153; seed-cotton in gin-house, $150, $63; loose lint cotton, $50, $19; cotton-seed, $75, $31; steam-engine and boiler located about 12 feet from gin-house, $1,000, $231; belting and shafting, $175, $75; grist-mill and fixtures, $200, $80; saw-mill and fixtures, $350, $153; cotton-press in gin-house, $190, $81.

The plaintiff tendered the following issues at the close of the evidence: “(1) Did the plaintiff, at the time of his application for insurance, and at the time his policy was issued thereon, have such an interest in the property insured, or any part thereof, as was the subject of insurance? If so, what part? (2) Did the plaintiff, at the time of his application, make any false representation as to his ownership of said property, or any part thereof? If so, what part? (3) Did the plaintiff, at the time of his application, make any false representation as to any lien, incumbrance, or claim on said property, or any part thereof? If so, what part? (4) Did the plaintiff comply with the conditions and stipulations of the contract of insurance on his part? (5) How long after the plaintiff's cause of action accrued before this suit was brought? (6) Is the defendant indebted to the plaintiff in any sum under the said policy of insurance? If so, how much?”

His honor refused to submit these issues, and in lieu thereof submitted, among others, the following: “(1) Was the plaintiff, at the time when his application for insurance was made, the sole and undisputed owner of the engine and boiler, the belting and shafting, and the saw-mill and smoke-stack, holding them free of any claim or incumbrance, as represented in the application? *** (3) Was the plaintiff, at said time, the undisputed owner of the gin-house mentioned in said application and policy? *** (6) Did the plaintiff commence this action within the time limited for the commencement thereof by the contract of insurance?”

The plaintiff excepted to the refusal to submit the issues tendered by him, and to the first, third, and sixth issues submitted by the court, and this is the first error assigned. The issues are made by the allegations of complaint and denials of the answer, and should be only such as are necessary to determine the controversy between the parties. Often questions of fact are alleged and denied, which, whether found one way or the other, do not, in themselves, decide the issue or issues involved, and it is not necessary, but often improper, to submit such questions of fact to the jury.

In Cedar Falls v. Wallace, 83 N. C. 227, DILLARD, J., approving Albright v. Mitchell, 70 N. C. 445, says: “It is not every matter alleged on one side and denied on the other that, in a legal sense, is an issue, but only such as are necessary to dispose of the controversy; and to such necessary matters the issues submitted ought to be confined as far as possible, in order to avoid embarrassment and confusion to the jury from a multiplicity of issues.”

The form in which issues are submitted is of little consequence, if the matters in controversy are clearly and fairly presented by them...