Samet v. Boston Ins. Co.

• Decision Date: 20 May 1953
• Docket Number: No. 673,673
• Citation: 75 S.E.2d 913,237 N.C. 758
• Parties: SAMET et al. v. BOSTON INS. CO. et al.
• Court: North Carolina Supreme Court

Page 913

75 S.E.2d 913

237 N.C. 758

SAMET et al. v. BOSTON INS. CO. et al.

No. 673

Supreme Court of North Carolina.

May 20, 1953

Crissman & Bencini, High Point, for plaintiffs appellants.

Smith, Sapp, Moore & Smith, Greensboro, and Stephen P. Millikin, Greensboro, for defendants appellees.

DEVIN, Chief Justice.

The plaintiffs' appeal presents the question of the propriety of the judgment of involuntary nonsuit rendered by Judge Sharp at the close of plaintiffs' evidence.

In determining this question we are admonished by correct rules of appellate practice to consider the evidence in the light most favorable for the plaintiffs, but observance of this rule does not relieve the court of the duty of requiring that the plaintiffs offer some substantial evidence to support the allegations of the complaint.

The plaintiffs have alleged and staked their action upon the allegation that their building was struck and damaged by lightning. Conceding that no eye saw the lightning strike the building, the plaintiffs nevertheless bring the case here for review on the theory that they have offered circumstantial evidence sufficient to survive a nonsuit and to carry the case to the jury that the damage to their building was in fact caused by lightning.

We have examined the evidence set out in the record, and, without undertaking to quote the testimony, we reach the conclusion that it fails to show more than a possibility or to furnish more than material for conjecture as to the cause of the damage to plaintiffs' building. It does not measure up to that degree of 'reasonable certainty as to probabilities arising from a fair consideration of the evidence' that would require submission of the issue to the jury. Mount Olive Mfg. Co. v. Atlantic Coast Line R. Co., 233 N.C. 661, 65 S.E.2d 379. In the expressive language of Justice Brogden failure to apply this rule 'would unloose a jury to wander aimlessly in the fields of speculation. ' Poovey v. International Sugar Feed Number Two Co., 191 N.C. 722, 133 S.E. 12, 14; Mount Olive Mfg. Co. v. Atlantic Coast Line R. Co., 233 N.C. 661, 670, 65 S.E.2d 379; 32 C.J.S., Evidence, § 1042, p. 1116.

The material facts shown by plaintiffs' evidence may be briefly summarized as follows: On the evening of July 16, 1951, there was a sudden violent storm, accompanied by lightning and thunder and a downpour of rain, lasting about 20 or 30 minutes. One witness thought there must have been a 'cloudburst' of rain, and there were gusts of wind of unusually high velocity. Another witness who had been at work in a building 150 feet from plaintiffs' building, and left in a truck about the time the rain began, testified that before he left he saw a lightning flash and felt the vibration from it and the thunder that followed; that he heard a fire alarm, or bell from a fire truck, from a building across the street; that when he left he drove along the street by the plaintiffs' building and observed no sign of damage. The next morning about 7:30 a. m. it was discovered that a part of the roof of plaintiffs' two-story building (100 by 45 feet) had collapsed, and had broken through the second floor and deposited on the first floor a mass of splintered and broken timbers. Between 50 and 75 feet of the roof at the rear, to the width of 45 feet, had fallen in. This part of the roof sloped to the rear. According to a witness it appeared as if some force had struck the roof and 'just pushed it through the second floor and on down to the first floor,' and a lot of water had come in there. The roof was of five-ply felt, with asphalt and gravel, and it was estimated the roof weighed...