Polansky v. Millers' Mut. Fire Ins. Ass'n of Ill.

• Decision Date: 21 October 1953
• Docket Number: No. 112,112
• Citation: 238 N.C. 427,78 S.E.2d 213
• Court: North Carolina Supreme Court
• Parties: POLANSKY, v. MILLER'S MUT. FIRE INS. ASS'N OF ILLINOIS.

Page 213

78 S.E.2d 213

238 N.C. 427

POLANSKY, v. MILLER'S MUT. FIRE INS. ASS'N OF ILLINOIS.

No. 112

Supreme Court of North Carolina.

Oct. 21, 1953

Gudger, Elmore & Martin, Asheville, for defendant-appellant.

Uzzell & DuMont, Asheville, for plaintiff-appellee.

PARKER, Justice.

The defendant assigns as Errors Nos. 4 and 5 the trial court's denying its motion for judgment of nonsuit made at the close of the plaintiff's evidence, and renewed at the close of all the evidence. G.S. § 1-183.

In passing upon such a motion it is well-settled law that the plaintiff's evidence is taken as true, and given every reasonble inference in favor of the plaintiff; the defendant's evidence, unless favorable to the plaintiff, is not considered, except when not in conflict with plaintiff's evidence, it may be used to explain or make clear that which has been offered by the plaintiff. Rice v. City of Lumberton, 235 N.C. 227, 69 S.E.2d 543; Whitley v. Jones, 238 N.C. 332, 78 S.E.2d 147.

The plaintiff's evidence, taken as true, establishes fire, smoke and an explosion causing damage to the automobile. The defendant's evidence tended to show that no fire or explosion occurred, and that the damage to the car resulted from mechanical breakdown or failure.

The defendant contends that to avoid a nonsuit the plaintiff must offer evidence that his loss comes within the provisions of the insurance policy and is not excluded by any of the exceptions in the policy. The defendant alleges in its answer as an affirmative defense that plaintiff's loss was caused by wear and tear or mechanical or electrical breakdown or failure, and is excluded under the provisions of the insurance policy.

It is generally held that the burden is on the insurer to show that damages claimed fall within an exception of loss by explosion. 29 Am.Jur., Insurance, p. 1086; German American Ins. Co. v. Hyman, 42 Colo. 156, 94 P. 27, 16 L.R.A.,N.S., 77.

In MacClure v. Accident & Casualty Co., 229 N.C. 305, 49 S.E.2d 742, 746, the lower court nonsuited the plaintiff based upon an affirmative defense set up by the defendant. In reversing the lower court, we said 'the general rule is that the party who seeks to avoid liability by interposing an affirmative plea assumes the burden of proving his allegation by competent evidence before the jury. ' (Citing authori ties.) To the same effect Williams v. Philadelphia Life Ins. Co., 212 N.C. 516, 193 S.E. 728 and Wilson v. Inter-Ocean Casualty Co., 210 N.C. 585, 188 S.E. 102. See also Wells v. Clayton, 236 N.C. 102, 72 S.E.2d 16.

The defendant relies upon General Exchange Ins. Corp. v. Bolles, Tex.Civ.App., 143 S.W.2d 635 and other Texas cases. Whatever may be the law in Texas, our cases hold otherwise. It also relies on Peoples Bank & Trust Co. v. Fidelity & Casualty Co., 231 N.C. 510, 57 S.E.2d 809, 15 A.L.R.2d 996. On the facts that case is not in point.

The defendant further contends on his motion for nonsuit 'standing alone, the plaintiff's evidence creates a mystery. No cause for the light, smoke and loud noise is given or can be inferred from plaintiff's testimony. The evidence of the defendant explains and clarfies the evidence of the plaintiff to this effect. ' The insurance policy insures the plaintiff against direct and accidental loss to his automobile caused by fire or explosion. In making this contention the defendant does not heed the definition of the word 'accidental.' In Kirkley v. Merrimack Mutual Fire Ins. Co., 232 N.C. 292, 59 S.E.2d 629, 631, there was an insurance policy containing the exact words of the policy in this case as to comprehensive loss or damage, except by collision or upset, as set forth in '1 Coverage A.' In that case this Court said 'accidental' is defined in Black's Law Dictionary, 3rd Ed., p. 23, as 'an unforeseen event, occurring without the will or design of the person whose mere act caused it; an unexpected, unusual, or undesigned occurrence; the effect of an...