McAdams v. Union Sec. Life Ins. Co.

• Court: North Carolina Court of Appeals
• Writing for the Court: MITCHELL; BROCK, C. J., and HEDRICK
• Citation: McAdams v. Union Sec. Life Ins. Co., 244 S.E.2d 692, 36 N.C.App. 463 (N.C. App. 1978)
• Decision Date: 06 June 1978
• Docket Number: No. 7728DC590,7728DC590
• Parties: Wallace A. McADAMS v. UNION SECURITY LIFE INSURANCE COMPANY.

Page 692

244 S.E.2d 692

36 N.C.App. 463

Wallace A. McADAMS v. UNION SECURITY LIFE INSURANCE COMPANY.

No. 7728DC590.

Court of Appeals of North Carolina.

June 6, 1978.

Dr. Michael testified that his diagnosis of the plaintiff's condition in January of 1973 and continuing to the present was not merely arteriosclerosis. It was arteriosclerotic heart disease with coronary insufficiency. He testified that this was not the same as generalized arteriosclerosis. On cross-examination, Dr. Michael testified that he would not expect to find arteriosclerotic heart disease with coronary insufficiency present to some degree in a person of middle age.

The defendant offered other evidence through Dr. Michael. As this evidence tended in some respects to contradict the plaintiff's evidence, it will not be set forth or considered in this opinion.

The defendant rested and renewed its motion for a directed verdict in its favor. The plaintiff also moved for a directed verdict in his favor. The trial court denied the plaintiff's motion and granted the motion of the defendant for a directed verdict at the close of all of the evidence. The plaintiff appealed.

Morris, Golding, Blue & Phillips by Stephen Kropelnicki, Jr., Asheville, for plaintiff-appellant.

Adams, Hendon & Carson, P.A., by George Ward Hendon, Asheville, for defendant-appellee.

MITCHELL, Judge.

The plaintiff brought forward an appeal only his assignments asserting that the trial court erred in granting the defendant's motion for a directed verdict at the close of all of the evidence and in entering the judgment. He specifically abandoned his assignment relative to the denial of his motion for directed verdict in his favor. We limit our review and opinion to a consideration of those assignments brought forward.

It is elemental that, on a motion by a defendant for a directed verdict, the plaintiff's evidence must be taken as true and all the evidence must be considered in the light most favorable to the plaintiff, giving him the benefit of every reasonable inference to be drawn therefrom. Farmer v. Chaney, 292 N.C. 451, 233 S.E.2d 582 (1977); Manganello v. Permastone, Inc., 291 N.C. 666, 231 S.E.2d 678 (1977). Any conflict in the evidence must be resolved in the plaintiff's favor. Summey v. Cauthen, 283 N.C. 640, 197 S.E.2d 549 (1973).

The plaintiff contends that his evidence made out a prima facie case of loss within the coverage of the policy, and that the burden was upon the defendant to prove that it was relieved of liability by an exclusion or limitation of the policy. The plaintiff argues, therefore, that the trial court erred in granting a directed verdict in favor of the defendant, as the defendant was a party having the burden of proof on a contested issue.

In support of this argument, the plaintiff refers us to Cutts v. Casey, 278 N.C. 390, 180 S.E.2d 297 (1971). That case held that a trial court, acting pursuant to G.S. 1A-1, Rule 50, cannot direct a verdict in favor of the party having the burden of proof when his right to recover depends upon the credibility of his witnesses. 278 N.C. at 417, 180 S.E.2d at 311. No such situation is presented by the case sub judice. Here, the defendant was not required to rely upon the credibility of its witness. The defendant's witness, Dr. Michael, did not substantially contradict the plaintiff's evidence, which consisted largely of the testimony of the plaintiff. Rather, Dr. Michael's testimony tended to explain and clarify the plaintiff's testimony and not to vary with that testimony. Thus, the prohibition of Cutts is inapplicable to the present facts. See Kidd v. Early, 289 N.C. 343, 222 S.E.2d 392 (1976).

The plaintiff's own testimony, as well as other evidence introduced by him, clearly indicated that he suffered from arteriosclerotic heart disease with coronary insufficiency which was diagnosed and treated no later than February of 1973. His evidence also clearly indicated that he was specifically informed by Dr. Michael no later than February of 1973 that he was afflicted with this specific disease. Additionally, the plaintiff's evidence indicated that the documents submitted in support of his claim under the policy themselves specifically stated that the disease causing his disability had arisen prior to his being brought under the coverage of the defendant's policy. The defendant's evidence, in the form of Dr. Michael's testimony, was not significantly at variance with the plaintiff's evidence and could be considered by the trial court in ruling upon the defendant's motion for a directed verdict. Hincher v. Hospital Care Assn., 248 N.C. 397, 402, 103 S.E.2d 457, 461 (1958). Although Hincher dealt with a motion to nonsuit, the rules regarding directed verdicts pursuant to Rule 50 are the same as those previously controlling nonsuit. Younts v. Insurance Co., 281 N.C. 582, 189 S.E.2d 137 (1972); see also, Clark v. Bodycombe, 289 N.C. 246, 221 S.E.2d 506 (1976).

In the instant case it was apparent that the testimony of Dr. Michael for the defendant tended to harmonize with, explain and clarify the plaintiff's testimony without contradicting that testimony. The only legitimate conclusion which could be drawn from the plaintiff's testimony alone or in conjunction with that of the defendant was that the plaintiff suffered from arteriosclerotic heart disease with coronary insufficiency prior to his coverage under the defendant's policy. It is equally unchallengeable that the defendant's disability arose from this disease. If this establishes the defendant's affirmative defense as a matter of law, the directed verdict in favor of the defendant was proper. Hincher v....