Ferrell v. Metro. Life Ins. Co

• Decision Date: 18 September 1935
• Docket Number: No. 25.,25.
• Court: North Carolina Supreme Court
• Parties: FERRELL. v. METROPOLITAN LIFE INS. CO.

181 S.E. 327

208 N. C. 420

FERRELL.

v.METROPOLITAN LIFE INS. CO.

No. 25.

Supreme Court of North Carolina.

Sept. 18, 1935.

Appeal from Superior Court, Currituck County; Cranmer, Judge.

Action by Wilma E. Ferrell against the Metropolitan Life Insurance Company. Judgment for defendant, and plaintiff appeals.

Reversed.

This is an action by plaintiff to recover of defendant the sum of $2,000 on a life insurance policy.

C. R. Morris, of Currituck, and John H. Hall, of Elizabeth City, for appellant.

Worth & Horner, of Elizabeth City, for appellee.

CLARKSON, Justice.

At the close of plaintiff's evidence, the defendant did not make a motion for judgment as in case of nonsuit. C. S. § 567. The record discloses "at the conclusion of all the testimony the Court, of its own volition, ordered that judgment of nonsuit be entered."

In Nowell v. Basnight, 185 N. C. 142, 147, 116 S. E. 87, 89: "The following may be considered as fairly interpretative of Consol. St. 567. ' * * * Time of Making Motion. It must be made first at the close of plaintiff's evidence, and before defendant introduces any evidence." By the failure of defendant to follow strictly C. S. § 567, the question of the insufficiency of evidence is waived. Harrison v. Ins. Co., 207 N. C. 487, 490, 177 S. E. 423.

A nonsuit and dismissal under the Hinsdale Act has the same legal effect as a directed verdict, and where, in an action on a note, there is no evidence in contradiction of defendant's evidence constituting a complete defense to the action, a judgment as of nonsuit will not be held for error, since the evidence would support a directed verdict in defendant's favor; the court notweighing the evidence, but taking it to be true. Hood, Com'r of Banks, v. Bayless, 207 N. C. 82, 171 S. E. 823.

On the former appeal, 207 N. C 51, 52, 175 S. E. 692, 693, this court said: "The plaintiff made out a prima facie case. The defendant offered evidence tending to show that the policy in suit lapsed for nonpayment of semiannual premium due October 26, 1932. The credibility of defendant's defense was challenged by plaintiff's denial of assured's signature to the written acknowledgement. This made it a case for the jury."

In Western Carolina Power Co. v. Yount (Robinette v. Yount), 208 N. C. 182, 184, 179 S. E. 804, 805, it is written: " 'A decision by the Supreme Court on a prior appeal constitutes the law of the case, both in subsequent proceedings in the trial court and on a subsequent appeal.' Newbern v. Telegraph Co.,...