Lexington Mirror Co. v. Philadelphia Cas. Co.
| Decision Date | 10 November 1910 |
| Citation | 69 S.E. 261,153 N.C. 373 |
| Parties | LEXINGTON MIRROR CO. v. PHILADELPHIA CASUALTY CO. |
| Court | North Carolina Supreme Court |
Appeal from Superior Court, Davidson County; W. J. Adams, Judge.
Action by the Lexington Mirror Company against the Philadelphia Casualty Company. Judgment for plaintiff, and defendant appeals. Affirmed.
Where a case is referred, defendant waives its right to a jury trial by not demanding it when it files exceptions to the report of the referee; a mere exception to the order of reference not being sufficient.
Walser & Walser and Max L. Arnstein, for appellant.
E. E Raper and McCrary & McCrary, for appellee.
This is an action upon a policy of credit indemnity insurance, by which defendant agreed to indemnify plaintiff against losses on sales to its customers from February 25, 1908, to August 3, 1909, and on accounts against solvent customers, on its books February 25, 1908, for goods shipped since April 3 1907. Plaintiff seeks to recover $3,690.04 for losses on two accounts, which it claims are covered by the indemnity clause of the policy. The case was referred, and the defendant excepted, and demanded a jury trial.
The referee reported in favor of the plaintiff, except as to an account for $548.85, which he found was "outstanding on the books" February 25, 1908, and was for goods shipped since April 3, 1097, but was not solvent on February 25 1908. Plaintiff excepted to this finding, and the court, upon what we deem to be competent and sufficient evidence sustained the exception, and modified the report accordingly. The referee's findings of fact, when there is any evidence tending to support them, if affirmed by the judge are conclusive on appeal. Frey v. Lumber Co., 144 N.C. 759, 57 S.E. 464; Henderson v. McLain, 146 N.C. 329, 59 S.E. 873. We cannot, therefore, sustain the exceptions taken to such findings.
The defendant waived its right to a trial by jury by not demanding it when it filed exceptions to the report of the referee. It did not comply at all with the rule established by this court in such cases. Harris v. Shaffer, 92 N.C. 30; Yelverton v. Coley, 101 N.C. 248, 7 S.E 672; Driller Co. v. Worth, 117 N.C. 515, 23 S.E. 427; Wilson v. Featherstone, 120 N.C. 446, 27 S.E. 124: Roughton v. Sawyer, 144 N.C. 766, 56 S.E. 480; Ogden v. Land Co., 146 N.C. 443, 59 S.E. 1027. There was a clear abdication of the right in this case, as the record shows....
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