Rudd v. American Fidelity & Casualty Co., 202 N.C. 779 (1932)

June 15, 1932 · Supreme Court of North Carolina
202 N.C. 779


(Filed 15 June, 1932.)

1. Appeal and Error J e — Reception of incompetent evidence to prove an admitted fact will not be held for reversible error.

Where in an action against an insurance company the plaintiff alleges that the driver of an automobile covered by a policy of liability insurance issued by the defendant had negligently inflicted the injury in suit and that execution against the driver had been returned unsatisfied, and the insurance company admits the issuance of the policy and that it was in force at the time of the injury, and admits liability to the extent of the judgment if the policy covered the particular car the insured was driving at the time of the accident: Eelti,, if incompetent evidence was received at the trial upon matters which the defendant had admitted the reception of such evidence will not be held for reversible error.

S. Trial D c — Conflicting evidence held to have raised issue of fact determinative by the verdict of the jury.

Where the identity of an automobile in a collision as the one covered by an accident indemnity policy is the determinative question involved at the trial, the issue is for the jury under conflicting evidence, and its verdict thereon is determinative.

3. Appeal and Error J d — Appellant must show that alleged error was prejudicial.

The appellant must show not only that error had been committed upon the trial in the lower court, but also that the alleged error was prejudicial.

4. Insurance P b — Agent’s testimony of renewal held competent in corroboration of plaintiff’s contention that car was covered by the policy.

The testimony of an insurance agent of the renewal of a policy of automobile liability insurance, of which he had personal knowledge, is held competent as corroborative evidence of the plaintiff’s contention that the car causing the injury in suit was the car covered in the renewal policy.

Appeal by defendant from Warliclc, J., at August-September Term, 1931, of Guileoed.

On 24 December, 1928, a collision occurred on Highway No. 70, north of Greensboro, between a car driven by the plaintiff and one driven by E. L. Holmes. The plaintiff was injured. He brought suit against Holmes and recovered a judgment, but on appeal to this Court a new trial was granted. 198 N. 0., 640. In the second trial the plaintiff again prevailed, and on appeal the judgment was affirmed. 199 N. 0., 813. An execution was issued on this judgment and returned unsatisfied.

The American Fidelity and Casualty Company, defendant in this action, was the underwriter or insurance carrier of E. L. Holmes. Upon *780return of tbe unsatisfied execution tbe plaintiff instituted tbe present action. Tbe nature of tbe controversy may be seen by reference to tbe verdict, wbicb is as follows:

1. "Was tbe Packard automobile involved in tbe collision in wbicb tbe plaintiff, W. Reuben Rudd, was injured, covered by tbe terms of a policy of insurance issued by tbe defendant, tbe American Fidelity and Casualty Company, and in full force and effect at tbe time of tbe collision? Answer: Yes.

2. If so, bas there been any breach of tbe terms of tbe said policy of insurance by tbe said'R. L. Holmes, wbicb vitiated or invalidated tbe policy thereafter ? Answer: No.

8. What amount, if any, is tbe plaintiff entitled 'to recover of tbe defendant ? Answer: $2,500 principal, and $202.20 cost and interest, from 9 August, 1930, at 6% and cost of this action.

It was agreed by tbe parties that if tbe first two issues were answered in favor of the plaintiff tbe answer to tbe third issue should be as set out in tbe verdict. Judgment was awarded tbe plaintiff from which tbe defendant appealed upon assigned error.

H. R. Stanley for plaintiff.

John W. Hester and F. Glenn Henderson for defendant.

Adams, J.

Tbe plaintiff offered in evidence a paper, tbe service of wbicb bad been accepted, purporting to be a notice to tbe defendant to produce at tbe trial tbe original, or duplicate original, or standard form policy, of insurance, by'which R. L. Holmes was insured against liability for personal injury sustained by third persons and property damage arising out of tbe use, operation, and maintenance of an automobile therein described — tbe policy having been delivered to Holmes on or before 24 December, 1928. In addition, tbe plaintiff offered secondary evidence of tbe contents of tbe policy wbicb, it was claimed, bad been lost or destroyed. Tbe defendant’s exceptions to tbe admission of this evidence are tbe ninth and thirteenth.

Primarily tbe defendant takes tbe position that tbe plaintiff bas no rights superior to those of tbe assured, Peeler v. Casualty Co., 197 N. C., 286; that tbe injury complained of must be within tbe terms of tbe policy; that it is incumbent upon tbe plaintiff to show that tbe parties intended to insure tbe particular automobile that caused tbe plaintiff’s injury; and, further, that tbe defendant’s liability is limited to tbe car named in tbe policy. All this may be granted. Tbe evidence is that tbe injury was caused by Holmes’s negligent operation of a Packard car. We must, therefore, turn to tbe specific objections wbicb *781are urged against tbe competency of evidence tending to sbow tbe contents of tbe policy of insurance.

It is first contended tbat tbe plaintiff must elect between two theories: tbat of a lost policy in tbe possession of tbe assured and tbat of a policy beld adversely by tbe defendant. It is also contended tbat incompetent secondary evidence was admitted to prove tbe issuance of a policy by tbe defendant covering tbe liability established by tbe judgment in Rudd v. Holmes, supra.

Suppose we assume, certainly, without deciding, tbat technical error was committed: is tbe defendant prejudiced ? We think not. In bis complaint tbe plaintiff alleged tbat sometime prior to 25 December, 1928, tbe defendant issued its policy of insurance to one R. L. Holmes, and tbe defendant answered as follows:

“It is admitted tbat tbe defendant issued a policy of insurance to R. L. Holmes, of Reidsville, N. 0., therein agreeing to insure tbe said R. L. Holmes against liability for bodily injuries and property damages arising out of tbe ownership, maintenance and use of a certain automobile therein described.”

And tbe following admission was entered of record by tbe defendant’s counsel: “It is admitted tbat tbe policy was outstanding on 24 December, 1928. I will admit this if your Honor please. I will make this admission. I admit tbat if tbe car involved in tbe action was covered by a policy issued by tbe defendant, said policy was issued on 20 March, 1928, and tbat tbe limit of said policy was in such sum as would have covered tbe judgment of tbe plaintiff in this action against R. L. Holmes.”

Tbe defendant insured Holmes against liability arising out of bis operation of a car; tbe policy was issued on 20 March, 1928; its terms covered tbe plaintiff’s judgment; it was outstanding when tbe injury occurred. All tbe essential elements of liability are admitted except tbe identity of tbe car and tbe assured’s compliance with tbe terms of tbe policy. Tbe matters embraced in tbe last two propositions are determined by tbe jury’s answer to tbe first and second issues.

Tbe nonidentity of tbe car by which tbe plaintiff was injured as tbe car described in tbe policy was tbe chief point of defense. The defendant’s evidence tended to show tbat Holmes applied for a certificate of title to a Buick sedan on 28 September, 1926; tbat this was tbe only ear registered in bis name on 24 December, 1928, when tbe collision occurred; and that the Packard was purchased on 28 December, 1928. Tbe plaintiff’s evidence was to tbe effect tbat Holmes bad one Packard sedan; tbat be called upon the defendant’s agent before tbe collision to renew tbe policy for this car when it expired, tbat tbe agent renewed *782it on 20 Mai'eh, 1928; and that Holmes was driving this car at the time of the injury. The conflicting evidence was resolved in favor of the plaintiff as indicated by the answer to the first issue.

Under these circumstances we cannot say as a legal inference that the defendant was prejudiced by the admission of the evidence to which the ninth and thirteenth exceptions are addressed. An appellant must not only show error; he must show that the error was prejudicial. Quelch v. Futch, 175 N. C., 694; In re Graven, 169 N. C., 561; Ferebee v. Berry, 168 N. C., 281; S. v. Smith, 164 N. C., 475. The reception 'of incompetent evidence to prove an admitted fact is not cause for disturbing the result of a trial. Brown v. McKee, 108 N. C., 387; Fisher v. Brown, 135 N. C., 198; Bag Co. v. Grocery Co., 171 N. C., 764; Lumber Co. v. Elizabeth City, 181 N. C., 442. The reversal of a judgment will not be ordered upon grounds which do not affect the merits of the cause. Ball v. McCormack, 172 N. C., 677.

"We have given consideration to other exceptions taken by the defendant. To the reception of the contract of agency between the defendant and Lovelace we discover no valid objection. The testimony of Lovelace, the agent, concerning his renewal in March, 1929, of a policy formally issued to Holmes by the defendant was competent in corroboration of the plaintiff’s contention that the Packard sedan was within the terms of the policy issued on 20 March, 1928. The material fact was his renewal of the policy and of this he had personal knowledge.

Upon a review of all the exceptions discussed in the defendant’s brief we find

No error.