Jones v. Dixie Fire Ins. Co.

• Decision Date: 14 October 1936
• Docket Number: 238.
• Citation: Jones v. Dixie Fire Ins. Co., 210 N.C. 559, 187 S.E. 769 (N.C. 1936)
• Parties: JONES v. DIXIE FIRE INS. CO. et al.
• Court: North Carolina Supreme Court

187 S.E. 769

210 N.C. 559

JONES v. DIXIE FIRE INS. CO. et al.

No. 238.

Supreme Court of North Carolina

October 14, 1936

Appeal from Superior Court, Johnston County; N. A. Sinclair, Judge.

Action by B. P. Jones against the Dixie Fire Insurance Company and another.From a judgment of nonsuit, plaintiff appeals.

Reversed and remanded for a new trial.

Granting judgment as in case of nonsuit where motion was first lodged after all evidence on both sides was in held error, since right to move was lost where motion was not made when plaintiff introduced his evidence and rested (C.S.§ 567).

Motion for judgment as in case of nonsuit could not be allowed after verdict, notwithstanding court's reservation of ruling on motion.

This is an action upon a fire insurance policy issued to the plaintiff by the defendant, wherein the defendant interposes the defense that the interest of the plaintiff in the property insured was not an unconditional and sole ownership and that the subject of the insurance was a building on ground not owned by the insured in fee simple, and that the policy sued on contained the following provisions: "This entire policy shall be void unless otherwise provided by agreement in writing added hereto, (a) if the interest of the insured be other than unconditional and sole ownership; or (b) if the subject of insurance be a building on ground not owned by the insured in fee simple."

The plaintiff offered evidence tending to show his title to the property described in the policy sued on, the issuance of the policy, the destruction by fire of the property, and the demand upon and refusal by the defendant to pay.

The defendant offered evidence tending to show that there was outstanding against the land upon which the building described in the policy stood an owelty charge.

The following appears at the close of the record:

"At the close of all the evidence the defendant moved for judgment as of nonsuit on the grounds (1) that the plaintiff's title is other than sole and unconditional ownership; (2) that the owelty lien against the property constitutes the party in whose favor the lien exists as part owner or part tenant.

The Court: I will hold, gentlemen, that the holder of the owelty was a tenant in common and has an equity in the land.

Gentlemen of the Jury: We have been discussing some law which in the opinion of the Court applies to this case, while you were out.I am submitting one issue to you: 'What amount, if anything, is the plaintiff entitled to recover of the defendant?'I charge you, gentlemen of the jury, if you find the facts to be as shown by all the evidence on both sides, the parol evidence and the record evidence introduced it is your duty to answer the issue 'Nothing'.

The jury answered the issue: $850.00.The Court ex mero motu set aside the verdict of the jury.

Counsel for defendant called the attention of the Court to the fact that the motion made was a motion for nonsuit and not a motion for a directed verdict, and that its motion had not been passed upon by the Court.The Court stated that he had inadvertently overlooked the form of the motion; that the defendant had a right for its motion to be passed upon, and that the ruling he had announced, prior to submitting the case to the jury, indicated that he was holding with the defendant as a matter of law.He, therefore, granted the motion for judgment as of nonsuit, to which the plaintiff excepted.

Judgment of nonsuit was entered in favor of the defendant, as appears in the record.The plaintiff excepted in open Court and gave notice of appeal to the Supreme Court."

W. J Hooks and G. A....